IN RE: J.M-R., Minor Child [Appeal By T.M., Mother]
No. 98902
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 18, 2013
[Cite as In re J.M-R., 2013-Ohio-1560.]
BEFORE: Boyle, P.J., Rocco, J., and Keough, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 11919533
Timothy R. Sterkel
1414 South Green Road
Suite 310
South Euclid, Ohio 44121
ATTORNEYS FOR APPELLEES
For Cuyahoga County Department of Children and Family Services
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mark Adelstein
Assistant Prosecuting Attorney
8111 Quincy Avenue
Room 450
Cleveland, Ohio 44104
For D.R.
Jay L. Mattes
4699 Azalea Lane
North Olmsted, Ohio 44070
Guardian Ad Litem for Child
Melinda J. Annandale
20033 Detroit Road
Annex F1-1
Rocky River, Ohio 44116
Guardian Ad Litem for Mother
Amy L. Habinski
526 Superior Avenue
Suite 1255
Cleveland, Ohio 44114
{1} Appellant-mother, T.M.1 (“mother“), appeals the juvenile court‘s judgment granting permanent custody of her minor child, J.M-R. (d.o.b. November 3, 2011), to Cuyahoga County Department of Children and Family Services (“CCDCFS” or “the agency“). She raises three assignments of error for our review:
- The trial court committed error when it proceeded with the permanent custody hearing without complying with
25 U.S.C. 1912 . - The trial court committed error when it terminated appellant‘s parental rights and granted permanent custody to CCDCFS.
- Appellant was denied effective assistance of counsel.
{2} Finding no merit to her appeal, we affirm.
Procedural History and Factual Background
{3} On November 4, 2011, CCDCFS filed a complaint alleging that J.M-R. was a dependent child and requesting a disposition of permanent custody. After a hearing on CCDCFS‘s motion, the agency was granted predispositional temporary custody of J.M-R. The court appointed a guardian ad litem for mother and a guardian ad litem for J.M-R.
{4} On March 12, 2012, mother filed a motion for legal custody, requesting that she be granted legal custody of J.M-R., or in the alternative, that legal custody be granted to the maternal grandmother, M.M., or the child‘s cousin, N.M.
{6} On June 20, 2012, mother and alleged father, D.R., admitted to an amended complaint alleging dependency, including (1) mother and alleged father had two children permanently removed from their care due to physical abuse of one of the children and both were placed in permanent custody in July 2011; (2) mother and alleged father had a
{7} The court held a permanent custody hearing on July 31, 2012. Present at the hearing were mother, mother‘s counsel, mother‘s guardian ad litem, the guardian ad litem for J.M-R., counsel for CCDCFS, and Michelene Willis, the CCDCFS social worker assigned to the case.
{8} Willis testified that she got involved with mother and father when the agency obtained emergency custody of their two older children, born November 14, 2008 and January 4, 2010, after the oldest child suffered multiple leg fractures when he was in father‘s care. The leg fractures were at different stages of healing when Willis was assigned to the case. This oldest child also had other injuries, including bruising on his face and a burn on his thumb. Willis testified that the agency received permanent custody of these children in June 2011. CCDCFS became involved with J.M-R. because mother became pregnant with him while she still had an active case with the agency. Because neither mother nor father had completed their case plans for the other children, the agency removed J.M-R. from mother and father at birth.
{10} Regarding mother‘s parenting component of her case plan, Willis testified that mother attended 15 of 18 parenting classes at the YWCA and did not receive her certificate. Mother was subsequently referred to two other parenting classes through Beech Brook and Carl Stokes, but she did not complete either of those programs.
{11} Willis testified that mother was supposed to receive domestic violence services as part of her case plan. Mother was referred to the YWCA for its seven-week domestic violence program. Although mother attended “the seven classes,” she did not obtain a certificate because she failed to complete the final phase of the program that included her preparing a safety plan and giving it to the instructor.
{12} According to Willis, mother and father lived together in a two-bedroom house. Mother and father admitted to a domestic violence history that included pushing each other. Father admitted to putting “his hands on” mother in the past. Father never completed a domestic violence program. Although Willis agreed that there had not been
{13} Willis further testified that mother never obtained a stable job, which was part of her case plan.
{14} Willis testified that father never completed any of his case plan. He had not established paternity. He did have a substance abuse assessment, but never followed through with the recommendations. Father never submitted to any random drug tests, although he admitted to smoking marijuana. Father never completed domestic violence classes, parenting classes, or provided proof of a stable income. Willis also stated that since the agency had obtained emergency custody of J.M-R., father had only visited him three times.
{15} Willis did not know definitively how many times mother had visited J.M-R., but said that mother visited him about once a month. Willis transports J.M-R. to each visit with mother and supervises the visits. Willis said that the majority of the time J.M-R. cries the “entire visit.”
{16} Willis testified that J.M-R. was placed in a foster-to-adopt home. She stated that J.M-R. was doing well and was “developmentally on target.” According to Willis, J.M-R. is very bonded to his foster family and his extended foster family. When Willis takes him back to the foster home, he is “excited to be back home and he calms down.”
{18} Mother had several witnesses testify against permanent custody. The maternal grandmother testified that she had been visiting J.M-R. since he was born. She testified that she wanted legal custody of him. She stated that she had not had a drug trafficking conviction since 1991. She had seven children, two still at home. Mother was actually born while she was in prison for her drug trafficking conviction. While grandmother was in prison, her other children were in the custody of their father, but she said they were never removed from her custody.
{20} On cross-examination, the maternal cousin agreed that she never completed a home study to have foster children live with her.
{21} Annandale, the child‘s guardian ad litem, testified that after she heard all of the evidence, her recommendation remained the same, i.e., that CCDCFS receive permanent custody of J.M-R. On cross-examination, Annandale testified that the maternal grandmother did not want custody of J.M-R. until Annandale told her that she could receive money from the state for having custody of him.
{22} After hearing all of the evidence, the trial court granted CCDCFS‘s motion for permanent custody.
Permanent Custody Determination
{24} In her second assignment of error, mother argues that the trial court erred when it granted CCDCFS‘s motion for permanent custody.
{25} An agency may obtain permanent custody of a child in two ways. In re E.P., 12th Dist. Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An agency may first obtain temporary custody of the child and then file a motion for permanent custody. See
{26} The termination of parental rights is governed by
{27} Clear and convincing evidence is
that measure or degree of proof which is more than a mere “preponderance of the evidence” but not to the extent of such certainty required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
In re Awkal, 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987).
{28} “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 Jacobs, 11th Dist. No. 99-G-2231, 2000 Ohio App. LEXIS 3859, *11 (Aug. 25, 2000), citing In re Taylor 11th Dist. No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11, 1999).
A. First Prong: Placement With Either Parent
{29} The trial court‘s determination of whether the child cannot or should not be placed with either parent is guided by
{30} Relevant to this section, the trial court made the following findings:
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. [
R.C. 2151.414(E)(1) ]The chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parents unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year from the time the court holds the hearing. [
R.C. 2151.414(E)(2) ]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. [
R.C. 2151.414(E)(4) ]The father has abandoned the child. [
R.C. 2151.414(E)(10) ]The parent has had parental rights terminated with respect to a sibling of the child 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. [
R.C. 2151.414(E)(11) ]
{31} One of the 16 factors would have been sufficient. In re M.W., 8th Dist. No. 91539, 2009-Ohio-121, ¶ 49. It is undisputed that mother had two previous children involuntarily removed from her custody. This factor alone would have supported the trial court‘s finding that J.M-R. could not or should not be returned to mother within a reasonable period of time. Id.
{33} Further, the trial court heard evidence that mother had borderline intellectual capacity. Without support, mother would not be able to care for J.M-R. by herself. According to J.M-R.‘s guardian ad litem, there was no person suitable to assist mother in caring for J.M-R.
{34} Mother argues that Willis acknowledged that mother needed “specialized classes” because of her disability. Mother contends that Willis further admitted that she sent mother to parenting and domestic service classes that were not “specialized classes.” Because of this, mother contends that the agency ignored mother‘s needs. We disagree. Willis testified that mother‘s mental health counselor was set up to assist mother in all aspects of her case plan, but that mother stopped going to her mental health appointments.
B. Second Prong: Best Interest Determination
{36} When determining whether a grant of permanent custody is in the children‘s best interest, the juvenile court must consider the following factors under
- 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;
- 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;
- 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 * * *;
- 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;
- Whether any of the factors in divisions (E)(7) to (11) apply in relation to the parents and child.
{37} This court has “consistently held that only one of the factors set forth in
{39} After reviewing the record, we conclude that the trial court had sufficient competent credible evidence before it to find that it was in J.M-R.‘s best interest to be placed in permanent custody. CCDCFS presented evidence at the permanent custody hearing establishing that J.M-R. had a very strong bond with his foster family, that he was doing well and was developmentally “on target.” J.M-R. was not old enough to express his own wishes, but his guardian ad litem recommended it was in his best interest to be placed in the permanent custody of CCDCFS.
{40} Further, evidence was presented to establish that J.M-R.‘s need for a legally secure permanent placement could not be achieved without a grant of permanent custody. Neither parent had completed any aspect of their case plan — even before J.M-R. was born with respect to the other two children. Notably, even after they received a new case plan for J.M-R., they were not able to complete the new case plan either.
{41} The court also heard evidence that mother chose to allow father to live with her. Mother and father both admitted that their relationship had been violent. But even more significant, father had severely abused their oldest child, which resulted in mother and father permanently losing custody of both of their older children. Mother still chose
{42} Finally, the fact that mother and father had two other children (siblings of J.M-R.) who had been placed in the permanent custody of CCDCFS is another factor a court can consider when determining what is in the child‘s best interest.
{43} Mother argues that she was “clearly * * * progressing toward reunification with her child.” She maintains that she had continually visited her child, obtained housing, and completed various classes that she was asked to attend. Mother contends that based on this evidence, “the best interest of the child was not served in terminating” her rights.
{44} While mother may be correct that the evidence shows that she was attempting to complete the requirements of her case plan, it also shows that mother had not completed many aspects of her case plan. Most notably, mother stopped going to her mental health counselor, who was the one person who could have assisted mother in completing the other aspects of her case plan. Further, mother continued to live with father despite the fact that he had not completed any aspect of his case plan.
{45} Accordingly, after reviewing the record, we conclude it supports the trial court‘s finding that it was in J.M-R.‘s best interest to be placed in the permanent custody of CCDCFS.
Indian Child Welfare Act
{47} In her first assignment of error, mother claims that the trial court erred when it proceeded with the permanent custody hearing without complying with the Indian Child Welfare Act (“ICWA“).
{48} The ICWA provides certain procedural safeguards in child custody proceedings when the subject child is an Indian child, as defined in
[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture[.]
{49} A tribe has exclusive jurisdiction over child custody proceedings in situations in which the Native American child resides or is domiciled within its reservation.
{50} In order for any of the provisions of the ICWA to apply, the court must first determine that the child is an “Indian child” as defined in the ICWA. See
{51} In this case, mother had the burden to prove that the children met the statutory criteria required for the ICWA to apply. Mother asserts in her brief that “the parents of the minor child are in the best position to inform the court as to whether or not their minor child is an Indian child.” The record is clear that mother never notified the trial court orally or in writing that J.R.-M. had Native American heritage, nor did she request a transfer to a tribal court.
Accordingly, we overrule mother‘s first assignment of error.
{52} In her third assignment of error, mother contends that her trial counsel was ineffective because her counsel “allowed her to enter a plea to the amended dependency complaint knowing the state was seeking permanent custody of her child.”
{53} The right to counsel, guaranteed in permanent custody proceedings by
{54} To reverse a trial court‘s judgment based upon a claim of ineffective assistance, a defendant must show, first, that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Noling, 98 Ohio St.3d 44, 65, 2002-Ohio-7044, 781 N.E.2d 88; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Both prongs of this test need not be analyzed, however, if a claim can be resolved under one prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Loza, 71 Ohio St.3d 61, 83, 641 N.E.2d 1082 (1994).
{56} Accordingly, mother‘s third assignment of error is overruled.
{57} Judgment affirmed.
It is ordered that appellees 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 entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR