IN RE: J.D., ET AL. A Minor Child [Appeal By Mother]
No. 106826
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 11, 2018
2018-Ohio-4118
BEFORE: Jones, J., Kilbane, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 17903554 and AD 15918094
Kelly Zacharias
5546 Pearl Road
Parma, Ohio 44129
ATTORNEYS FOR APPELLEE
For CCDCFS
Michael C. O‘Malley
Cuyahoga County Prosecutor
Cheryl Rice
Marie C. Frey
Michelle A. Myers
Cuyahoga County Assistant Prosecutors
3955 Euclid Avenue
Cleveland, Ohio 44115
B.D., pro se
14835 Euclid Avenue, Apt. 205
East Cleveland, Ohio 44112
John Doe, Unknown father of M.D.
c/o Cuyahoga County Juvenile Court
Office of the Clerk of Court
9300 Quincy Avenue
Cleveland, Ohio 44106
Guardian ad litem for E.A., Mother
Sheila Marie Sexton
McNamara, Hanrahan, Callender & Loxterman
P.O. Box 1206
Willoughby, Ohio 44096
Guardian ad litem for J.D.
2968 Meadowbrook Blvd.
Cleveland Heights, Ohio 44118
Guardian ad litem for M.D.
John M. Stryker
Stryker Law, Co., L.T.D.
20006 Detroit Road, Suite 310
Rocky River, Ohio 44116
{¶1} Mother-appellant, E.A. (“Mother“), appeals from the trial court‘s judgment granting permanent custody of two of her children, J.D. and M.D., to the Cuyahoga County Department of Children and Family Services (“CCDCFS” or “Agency“). For the reasons that follow, we affirm.
I. Procedural and Factual History
J.D.
{¶2} J.D. was born on December 21, 2015. On December 30, 2015, the Agency filed a complaint for dependency and protective supervision for J.D. A pretrial hearing was held on February 2, 2016, at which time Mother was arraigned on the complaint; Mother requested and was granted counsel.1 The juvenile court determined at that time that J.D.‘s continued residence with Mother would not be against the child‘s best interest.
{¶3} In March 2016, the Agency filed an amended complaint. Relative to Mother, the amended complaint alleged that she had “three other children who were adjudicated and removed from her custody due in part to [her] substance abuse issues and mental health condition,” and stated that she was “in need of a mental health assessment.” Mother appeared with counsel at the March 7, 2016 adjudicatory hearing and stipulated to the amended complaint; the juvenile court adjudicated J.D. dependent.
{¶4} On March 18, 2016, CCDCFS filed a motion for pre-dispositional temporary custody of J.D. As grounds for the motion, the Agency alleged that a domestic violence
{¶5} At the conclusion of the hearing, the court denied the Agency‘s motion, but issued an order prohibiting Mother from having contact with J.D.‘s alleged father and prohibiting the alleged father from having any contact with J.D. The Agency sought to have the trial court reconsider its decision, but the trial court denied the Agency‘s request.
{¶6} CCDCFS also filed a motion for leave to amend its original dispositional request for protective supervision to temporary custody; the trial court granted its motion. The dispositional hearing was held on April 18, 2016; Mother appeared with counsel. At the conclusion of the hearing, the magistrate assigned to the case found that (1) it was not in J.D.‘s best interest to remain in Mother‘s home, (2) the Agency had made reasonable efforts to prevent J.D.‘s removal from Mother‘s home, and (3) it was in J.D.‘s best interest that temporary custody of her be granted to the Agency. On October 21, 2016, CCDCFS filed a motion to modify temporary custody of J.D. to permanent custody.
M.D.
{¶7} M.D. was born on December 7, 2016. The following day, December 8, CCDCFS filed a complaint alleging that M.D. was dependent and seeking a permanent custody disposition of her. M.D. was committed to the pre-dispositional temporary custody of the Agency that same day.
J.D.
{¶9} Meanwhile, a pretrial hearing for J.D. was held on December 20, 2016, at which Mother appeared with counsel. At the conclusion of the hearing, the magistrate found that (1) Mother had not made significant progress on her case plan, (2) J.D.‘s return to Mother would not be in her best interest, (3) CCDCFS had made reasonable efforts to prevent J.D.‘s continued removal from Mother‘s home, and (4) the temporary custody order should be continued. Trial on the motion for permanent custody was set for March 6, 2017; however, on that date, the matter was continued.
M.D.
{¶10} A preliminary hearing was held for M.D. on March 20, 2017, but the matter was continued for service on her alleged father.2 On May 12, 2017, Mother appeared with counsel for an adjudicatory hearing relative to M.D. The Agency amended the complaint without objection and Mother stipulated to the amended complaint. Based on the stipulation and testimony, M.D. was adjudicated dependent. The matter was continued for a dispositional hearing with J.D.
{¶11} The dispositional hearing, at which CCDCFS sought permanent custody of both children, started on May 30, 2017. Some testimony was presented, and the matter thereafter continued on the following dates: August 18, 2017; October 12, 2017; and January 18, 2018.
Factual Background
{¶12} The following facts are adduced from the testimony and record. In addition to J.D. and M.D., Mother has three older children, none of whom were in her care at the time of J.D.‘s birth. Specifically, Mother‘s parental rights for her eldest child were terminated in January 2013, and her other two children were in the temporary custody of Summit County Children Services. CCDCFS had been involved with Mother since 2012. Of concern to the Agency was Mother‘s mental health and substance abuse issues, parenting skills, and lack of basic needs.
{¶13} As mentioned, J.D. initially remained in Mother‘s care after her birth. CCDCFS‘s initial complaint relative to J.D. alleged dependency and sought protective supervision of J.D. A case plan for Mother was developed in January 2016, and required her to address her mental health issues.
{¶14} While the dependency complaint was pending, CCDCFS learned of a domestic violence incident that occurred between Mother and J.D.‘s alleged father; the incident left Mother with scratches and bruises on her neck. The Agency also learned of another incident involving Mother‘s claim that J.D.‘s alleged father had pulled a knife on
{¶15} After a hearing on the Agency‘s motion, the magistrate denied it and J.D. remained in Mother‘s care. In March 2016, Mother‘s case plan was updated to include “Help Me Grow” services for J.D., a domestic violence objective, and parenting education for Mother. The Agency also referred Mother for a substance-abuse assessment and treatment.
{¶16} In April 2016, Mother contacted the Agency‘s worker and asked her to come get J.D. because she was “overwhelmed.” J.D. was then committed to the temporary custody of CCDCFS. It was determined at that time that J.D. was developmentally delayed, and the delays were later found to have been caused by the environment she experienced while living with Mother.
{¶17} Meanwhile, Mother had not initially engaged in the assessment for substance abuse. She finally complied in January 2017, and was diagnosed with a severe alcohol disorder and a mild marijuana disorder, and a treatment program at New Visions was recommended for her. Mother did not initially engage in treatment, however. Eventually, in May 2017, Mother did engage in treatment services and completed a program, but thereafter refused to submit to random urinalysis screens.
{¶19} In regard to her need for basic services, Mother had been living either in shelters or with domestically violent men. She did secure housing with the Cuyahoga Metropolitan Housing Authority (“CMHA“) in April 2017. As part of the housing, she was required to follow CMHA‘s rules and pay her monthly rent. CMHA had a work program, through which Mother could have worked to pay her rent. Despite being unemployed and the recipient of limited benefits, Mother did not participate in the work program. She jeopardized her participation in CMHA because she was often unable to pay her rent and allowed a boyfriend, who had a past criminal record and a pending criminal case, to live with her in violation of CMHA‘s rules.
{¶20} Relative to the Agency‘s concerns about Mother‘s mental health, the record demonstrates that Mother was diagnosed with depression and post-traumatic stress disorder. In the fall of 2016, Mother began working with an agency for treatment, but was terminated from the program because she was noncompliant. She re-engaged in services in May 2017, but became noncompliant again. As of the January 2018 hearing,
{¶21} In addition to being involved in domestically violent relationships while she parented J.D. and M.D., Mother has a history of being involved in such relationships dating back to 2012, before J.D. and M.D. were born. The record demonstrates that she did make some strides in trying to address this concern. For example, after the Agency‘s complaint regarding J.D. was filed, Mother participated in a domestic violence class and received a certificate of completion. Further, she received counseling on the effects of domestic violence through participation in a substance abuse program.
{¶22} However, Mother was not able to free herself from domestically violent relationships. Specifically, in November 2016, Mother was involved in a domestic incident while she was pregnant with M.D. After that incident, Mother entered a domestic violence shelter, where she remained until April 2017.
{¶23} Unfortunately, however, by May 2017, Mother was in a relationship with the father of her two older children, and he had previously been violent toward her.3 The record demonstrates that Mother indicated in the Summit County proceedings involving the older children that she and their father would be living together, and, as such, she sought shared parenting of her older two children with the father. Mother later indicated that she was no longer living with that father, but the Summit County agency
{¶24} J.D. and M.D. had guardians ad litem. Both guardians recommended that permanent custody was in the children‘s best interest. In a February 12, 2018 order, the trial court granted the Agency‘s motions for permanent custody of both J.D. and M.D. Mother now appeals. Further facts will be discussed below.
II. Assignments of Error
I. The juvenile court violated Mother‘s due process rights when it failed to arraign her on the motion to modify temporary custody to permanent custody for child J.D.
II. The juvenile court erred in its finding that J.D. was in the temporary custody of CCDCFS 12 or more months in a consecutive 22-month period.
III. The juvenile court erred in granting permanent custody because CCDCFS did not allege the grounds that currently existed under
R.C. 2151.414 in its motion for J.D. and complaint for M.D.IV. The juvenile court committed error to the prejudice of appellant contrary to the manifest weight and sufficiency of the evidence in determining a grant of permanent custody to CCDCFS to be in the best interest of J.D. and M.D.
III. Law and Analysis
Arraignment on Permanent Custody Motion for J.D.
{¶25} In her first assignment of error, Mother contends that the trial court erred by failing to arraign her on the Agency‘s motion for permanent custody of J.D. In support of her contention, she states that “[i]n criminal law, an arraignment is a basic, fundamental,
{¶26} Mother is correct that it is widely regarded that the permanent termination of parental rights is the “family law equivalent of the death penalty in a criminal case.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). But notwithstanding that sentiment, the criminal rules do not govern matters of abuse, neglect, and dependency; rather, they are civil in nature and governed by the Rules of Juvenile Procedure. In re Anderson, 92 Ohio St.3d 63, 65, 748 N.E.2d 67 (2001). The comparison to criminal law is “intended only to underscore the seriousness of the loss of parental rights, not to suggest that parties facing the loss of their parental rights had the same rights as criminal litigants.” In re M.B., 8th Dist. Cuyahoga Nos. 101094, 101095, and 101096, 2014-Ohio-4837, ¶ 20.
{¶27}
- Ascertain whether notice requirements have been complied with and, if not, whether the affected parties waive compliance;
- Inform the parties of the substance of the complaint, the purpose of the hearing, and possible consequences of the hearing, including the possibility that the cause may be transferred to the appropriate adult court under
Juv.R. 30 where the complaint alleges that a child fourteen years of age or over is delinquent by conduct that would constitute a felony if committed by an adult;
Inform unrepresented parties of their right to counsel and determine if those parties are waiving their right to counsel; - Appoint counsel for any unrepresented party under
Juv.R. 4(A) who does not waive the right to counsel; - Inform any unrepresented party who waives the right to counsel of the right: to obtain counsel at any stage of the proceedings, to remain silent, to offer evidence, to cross-examine witnesses, and, upon request, to have a record of all proceedings made, at public expense if indigent.
{¶28} As can be determined from the above-quoted language,
{¶29} In light of the above, the first assignment of error is overruled.
Finding that J.D. was in Temporary Custody 12 or More Months in a Consecutive 22-Month Period
{¶30} For her second assigned error, Mother contends that the juvenile court erred in finding that J.D. was in the temporary custody of the Agency 12 or more months in a consecutive 22-month period. The state concedes that the trial court erred by making this finding, but contends that the finding was not dispositive of the case and does not change the outcome.
{¶31} Under
may grant permanent custody of a child to a movant if the court determines * * * by clear and convincing evidence, that is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) 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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state.
(e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.
{¶32} The juvenile court found that J.D. was “not abandoned or orphaned but has been in temporary custody of a public children services agency or child placing agency * * * for twelve or more months of a consecutive twenty-two month period.” But the Ohio Supreme Court has established that “the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period set forth in
{¶33} The record here demonstrates that J.D. had been in temporary custody for approximately six months prior to CCDCFS filing its motion for permanent custody. Therefore, the juvenile court‘s finding that J.D. had been in temporary custody for 12 or more months of a consecutive 22-month period was error.
{¶34} The juvenile court‘s error, however, was not outcome determinative. As noted, any of the factors under
{¶35} The second assignment of error is sustained, and on remand, the juvenile court shall correct its entry as it relates to this assignment of error.
Notice of Grounds for Permanent Custody for both J.D. and M.D.
{¶37} To protect a parent‘s rights during permanent custody proceedings, due process requires “fundamentally fair procedures” when a state moves to destroy already weakened familial bonds. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
{¶38} We first note that only J.D.‘s case involved a motion to modify temporary custody to permanent custody; no motion was filed for M.D. because permanent custody was the relief sought in the complaint in her case. Upon review of the motion relative to J.D., we find that it provided notice to Mother what the grounds were the Agency was proceeding under. Specifically, the motion stated the following: “In the present matter, CCDCFS asserts that the condition listed at
{¶39} Further, CCDCFS submitted the affidavit of the “worker of record” assigned to the case. The worker averred to the following: (1) “Mother has failed to show that she has benefitted from domestic violence education, as Mother continues to have contact with Father, despite the Order of this Court * * * prohibiting contact between the parents“; (2) “Mother is currently engaged to Father and travels with him to Provider
{¶40} On this record, Mother was given adequate notice of what the charges against her were in regard to the Agency‘s request for permanent custody of J.D.
{¶41} In regard to M.D., as mentioned, the complaint filed in her case sought permanent custody in the prayer for relief. The complaint alleged, in part, the following: (1) “Mother and alleged father * * * have engaged in domestic violence which places the child at risk of harm“; (2) “Mother and * * * alleged father lack appropriate judgment and parenting skills [and they continue] to have contact with one another despite their volatile relationship and which is in violation of the no contact order issued by [the court]“; (3) “Mother has mental health problems, specifically depressive disorder, which prevent her from providing adequate care for the child. Mother was dismissed from treatment due to noncompliance in November of 2016“; and (4) “Mother has substance abuse problems that prevent her from providing adequate care for the child. Mother was recommended to complete intensive out-patient substance abuse treatment; however, she refuses to participate in said treatment.”
{¶43} On this record, Mother was afforded her due process rights: the allegations against her were clearly set forth, she appeared at all stages of the proceedings and was represented by counsel, and she had a meaningful opportunity to challenge the Agency‘s requests for permanent custody of J.D. and M.D.
{¶44} The third assignment of error is overruled.
Weight of the Evidence
{¶45} For her final assigned error, Mother contends that the juvenile court‘s determination that granting permanent custody to CCDCFS was in J.D.‘s and M.D.‘s best interest was not supported by the weight of the evidence.
{¶46} A reviewing court will generally not disturb a trial court‘s permanent custody decision unless the decision is against the manifest weight of the evidence. In re D.W., 8th Dist. Cuyahoga No. 98717, 2013-Ohio-272, ¶ 7. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶47} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court‘s findings * * * were supported by clear and convincing
The measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
{¶48} In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23 (1986). Under
{¶49} Second, when any one of the above factors exists, the trial court must analyze whether, by clear and convincing evidence, it is in the best interest of the children to grant permanent custody to the agency pursuant to
Relevant Factors
{¶50} As already discussed in resolving the first assignment of error, the juvenile court incorrectly found that J.D. had been in the Agency‘s temporary custody for 12 or more months of a consecutive 22-month period. But the court found that other factors under
{¶51} The juvenile court found that both J.D. and M.D. could not or should not be placed with Mother within a reasonable period of time.
(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. * * *
(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child.
* * *
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to those sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child.
* * *
(15) The parent has committed abuse as described in section 2151.031 of the Revised Code against the child or caused or allowed the child to suffer neglect as described in section 2151.03 of the Revised Code, and the court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child‘s placement with the child‘s parent a threat to the child‘s safety.
{¶52} Upon review, clear and convincing evidence supports the juvenile court‘s findings. Relative to
{¶53} In regard to the juvenile court‘s finding under
{¶54} The juvenile court also found, pursuant to
{¶55} In light of the above, the juvenile court properly found that J.D. and M.D. could not or should not be placed with Mother within a reasonable period of time. Thus, we now consider whether clear and convincing evidence supports the juvenile court‘s finding that it is in the best interest of J.D. and M.D. to grant permanent custody to CCDCFS.
(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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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.
{¶57} The court stated that it considered all of the above factors, and after doing so, determined that it was in the best interest of J.D. and M.D. that permanent custody be granted to the Agency. That finding was supported by clear and convincing evidence. In regard to Mother‘s relationship with the children, Mother admitted at one point that she was “overwhelmed” taking care of J.D. and asked the Agency to come get her. After J.D. was removed from Mother‘s care, it was noted that the child had some
{¶58} Both guardian ad litems for the children recommended permanent custody, and both children had been out of Mother‘s care since they were young, considerations supporting permanent custody under subsections (b) and (c) of
{¶59} Finally, the evidence demonstrated that J.D. and M.D. were in need of a legally secure permanent placement, and that type of placement could not be achieved without a grant of permanent custody to CCDCFS. The children were not eligible to be placed in a planned permanent living arrangement, there were no relatives available to assume legal custody, and reunification with Mother was not foreseeable within a reasonable period of time. And for all the reasons already discussed, J.D. and M.D. were in need of permanency.
{¶60} On this record, therefore, clear and convincing evidence supports the juvenile court‘s decision to grant CCDCFS permanent custody of J.D. and M.D. The fourth assignment of error is overruled.
{¶61} Judgment affirmed, but in accordance with our decision on the second assignment of error, the case is remanded for correction of the portion of J.D.‘s entry stating that she had been in temporary custody for 12 or more months of a consecutive 22-month period.
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 Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY EILEEN KILBANE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR