In re K.W.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 16902089
RELEASED AND JOURNALIZED: August 16, 2018
Anita Barthol Staley
P.O. Box 571
Mentor, Ohio 44060
Mark Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
James S. Besenyei
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Christina M. Joliat
P.O. Box 391531
Solon, Ohio 44139
GUARDIAN AD LITEM FOR APPELLANT
Amy K. Habinski
Habinski Law Offices, L.L.C.
11459 Mayfield Avenue, Suite 342
Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE CCDCFS
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Colleen R. Cassidy Ulrich
Assistant County Prosecutor
3955 Euclid Avenue
Cleveland, Ohio 44115
GUARDIAN AD LITEM FOR MINOR CHILD
Mark Witt
North Olmsted, Ohio 44070
FOR C.C., Father
C. C.
9228 Ward Circle
Toccoa, Georgia 30577
{¶1} Appellant, N.W. (referred to herein as “appellant”), mother of K.W., appeals from the order of the juvenile court that awarded permanent custody of K.W. to the Cuyahoga County Department of Children and Family Services (“CCDCFS”). She assigns the following three errors for our review:
I. The [CCDCFS] failed to establish by clear and convincing evidence that the Appellant would not be able to parent her child within a reasonable time and the child could not be placed with [her] within a reasonable time.
II. The trial court erred by finding in its journal entry that CCDCFS used reasonable case planning and diligent efforts in assisting the parent with regard to remedying the problems that caused [K.W.] to be placed outside the home.
III. The trial court erred in finding that it was in [K.W.’s] best interest to be placed in the permanent custody of CCDCFS.
{¶2} For the sake of clarity, we shall address the assigned errors out of their predesignated order. Having reviewed the record and the controlling case law, we affirm the decision of the trial court.
{¶3} K.W. was born in 2006. In 2016, CCDCFS filed a complaint for predispositional temporary custody of K.W. alleging that she is a dependent child. In relevant part, CCDCFS alleged that in 2009 and 2011, K.W. was in “substitute” or agency care in Georgia. In 2012, the Stephens County, Georgia Juvenile Court adjudicated K.W. a “deprived” child. Following this finding, the Georgia court returned K.W. to appellant, subject to the terms of an agreed protective order requiring appellant to complete anger management, obtain tutoring for K.W., and obtain family assistance from appellant’s church outreach ministry and a court-appointed special advocate. CCDCFS further alleged that K.W. did not attend school from March to December 2015. In January 2016, K.W. and appellant were staying in a
{¶4} On February 16, 2016, the trial court awarded emergency and temporary custody of K.W. to CCDCFS, and she was placed in foster care. CCDCFS implemented a caseplan directed at remedying K.W.’s weight and dental issues, and concerns that K.W. was not functioning well due to developmental issues, poor parenting, and neglect. The plan required appellant to undergo a mental health assessment, attend parenting classes, obtain safe housing, cooperate with the child’s school, and demonstrate the ability to meet K.W.’s basic needs. The court appointed a guardian ad litem (“GAL”) for K.W.
{¶5} Following a hearing on September 1, 2016, the trial court determined that K.W. “experienced significant emotional issues, resulting in self-injurious behaviors, following visitation and telephone contact with” appellant that “necessitated the emergency cessation of visitation and telephone contact[.]” The court later authorized appellant to have supervised visitation with K.W.
{¶6} On October 28, 2016, CCDCFS filed a motion for permanent custody of K.W. In support of this motion, the family’s social worker alleged that appellant had not benefitted from the services provided and remained unable to meet K.W.’s basic needs.
{¶7} The matter proceeded to trial on December 4, 2017. Gina Mazzone (“Mazzone”), K.W.’s mental health therapist, testified that K.W. is in biweekly therapy for post traumatic stress. When therapy began in 2016, K.W. was underweight and very timid. She expressed fear of appellant, and had anxiety, tantrums, self-harming behaviors, and was not participating at
{¶8} Mazzone stated that in 2016, K.W. reported that appellant’s boyfriend had sexually abused her. K.W. experienced bed-wetting in connection with the reporting of this allegation. K.W. also described an incident when a visit had to be terminated due to appellant’s anger, and appellant banged on the car as she and the visitation coach left with K.W. According to Mazzone, visitation with appellant was a “trigger” for K.W. that produced self-harming behavior, fear, and anxiety. When visitation was suspended, K.W. had fewer tantrums and increased her academic participation. K.W.’s negative behaviors resumed after appellant’s visitation was restored.
{¶9} Supportive visitation coach Jameelah Gaines (“Gaines”) testified that she assisted appellant with weekly visitation in order to help develop appellant’s parenting skills and build her relationship with K.W. Gaines stated that in the beginning, visitation proceeded properly, with appellant bringing food and crafts for K.W. Later, the visits became “poor.” K.W. did reciprocate affection to appellant, so Gaines provided appellant with worksheets on empathy and engagement, but appellant could not understand the materials. With regard to the terminated visit, Gaines stated that appellant was combative, argumentative, and aggressive, so Gaines ended the visit. As she and K.W. drove away, appellant blocked the car. At that point, Gaines removed herself from the case. Gaines acknowledged that over the course of her involvement, appellant had obtained a fixed income, housing, and furniture, and was in counseling at University Hospitals.
{¶10} Child protection specialist Tiffany Mahoney (“Mahoney”) testified that CCDCFS filed a prior complaint in this matter due to K.W. not attending school. During that matter,
{¶11} Mahoney also testified that given K.W.’s age, she should have been in the fourth grade. Although appellant claimed that she had been home-schooling K.W., school officials placed her in the second grade, and she was actually functioning at a pre-kindergarten level and was developmentally delayed.
{¶12} Mahoney stated that appellant attended a parenting education program as required under her caseplan. Appellant was also required to attend a mental health assessment. Appellant delayed the assessment, and ultimately the results were deemed inconclusive. In terms of housing, appellant resided with her mother, but obtained independent housing in May 2017. Appellant also worked briefly, then obtained SSI, but she had difficulty with budgeting.
{¶13} On the issue of visitation, Mahoney testified that visitation initially proceeded without issues, but K.W. behaved negatively before, during, and after visitation, so it was eventually suspended. As visitation was to resume, K.W. made allegations that appellant’s boyfriend molested her, so visitation was cancelled. By the time of trial, supervised weekly visitation was in place. The foster mother was also to supervise telephone contact between
{¶14} With regard to appellant’s overall progress, Mahoney testified that appellant failed to appreciate the gravity of the issues that developed while she parented K.W. Appellant also completed but did not benefit from parenting and other services. A specialist from Community Collaborative subsequently worked with appellant to address budgeting, employment, housing, parenting, and meeting K.W.’s medical needs. However, appellant continued to insist that K.W.’s weight and medical issues had not occurred until after CCDCFS obtained custody of her, and appellant did not believe that K.W. needed to be in CCDCFS custody. Mahoney also stated that she had submitted a referral for appellant and K.W. to attend counseling together, but this was not pursued after appellant’s visitation was suspended.
{¶15} Extended care worker Lois Graham (“Graham”) testified that CCDCFS ordered psychological and neuropsychological evaluations of appellant. Appellant delayed the appointments, insisting that there was nothing wrong with her. Graham also worked with appellant on budgeting, but she did not have a good grasp on her spending. Her expenditures exceeded her income, she was employed only briefly, and declined free furniture from Community Collaborative.
{¶16} Graham also testified that appellant becomes upset about hearing of the child’s activities in foster care, despite being instructed to avoid this topic. K.W. is withdrawn and appears unhappy during visitation.
{¶17} Finally, Graham stated that reunification with appellant is not possible within a reasonable period of time. According to Graham, although appellant insists on the return of K.W., reunification is not in K.W.’s best interest due to appellant’s lack of progress in
{¶18} GAL Mark Witt (“GAL”) testified that K.W. has major developmental issues that appellant cannot recognize, and that appellant is unable to meet K.W.’s medical and educational needs. The GAL stated that appellant is argumentative and aggressive in most of her relationships, and that K.W. does not want to have a relationship with her. According to the GAL, K.W. is in need of a permanent home and the award of permanent custody to CCDCFS is in her best interest.
{¶19} On December 18, 2017, the trial court awarded permanent custody of K.W. to CCDCFS. In relevant part, the court found:
14. [Appellant] and K.W. were participating in visitation and [Appellant] completed parenting class; however the child began displaying adverse reactions to the visits, including digging into her scalp until she would bleed.
15. Visitations were suspended via court order in May of 2016 due to the child behavioral concerns relating to the visits. The child also made disclosures regarding being sexually abused by [Appellant’s] boyfriend which had to be investigated.
16. Prior to the suspension of the visits, [Appellant] was not able to demonstrate that she had benefitted from the case plan services in which she had participated.
17. [Appellant] did not take any responsibility for the condition the child was in when she came into the custody of the Agency. She maintained that there was nothing wrong with the child, despite being so far behind in school and being underweight.
18. [Appellant was referred to] psychological evaluation through the court diagnostic clinic, but the results were inconclusive due to [Appellant] being too
guarded with her responses. No diagnoses or recommendations were able to be made. * * * 28. [Appellant] became very combative during the visitations which impeded [supportive visitation coach] Ms. Gaines’s ability to assist the family. * * *
33. [Appellant] would also cause distress to the child by attempting to find out information regarding the foster home [and had inappropriate interaction with the foster mother]. * * *
38. [Child protection specialist Graham and Community Collaborative] worked with [Appellant on budgeting but she] was not able to comprehend budgeting. * * *.
41. Ms. Graham described K.W.’s relationship with the foster family as being [a] loving one: K.W. gets along well with the family and wants to remain there.
42. Ms. Graham was not able to see the same type of bond between [Appellant] and K.W. as K.W. has with the foster mother. K.W. had requested not to go to visitation and her mood visibly changed from happy with the foster mother to sad with her biological mother during visitation.
43. K.W. had to repeat the third grade in the 2017-2018 school year due to her being so far behind academically. The child remains in the third grade despite being eleven years old.
44. All of the child’s basic and educational needs are met in the foster home. K.W. is well adjusted there and the foster family is willing to be permanent connection for the child. * * *
48. After the visitation ceased, the child made progress in therapy. She stopped clawing at her scalp, she was obedient in the foster home, and did much better in school.
49. During the therapy, Ms. Mazzone and K.W. were able to discuss the child triggers. One of the main triggers for the child was her mother. The child stated that she was fearful of mother. K.W. expressed she did not want to go back to living in shelters and being hungry. * * *
60. The [GAL] and the attorney for child both were in favor of granting of permanent custody.
{¶20} The trial court found that K.W. “is not abandoned or orphaned or has not been in temporary custody of public children services agency or private child placing agency under one
Reasonable Time Determination
{¶21} Within her first assigned error, appellant argues that the trial court’s determinations that she would not be able to parent K.W. within a reasonable time, and that K.W. could not or should not be placed with her within a reasonable time are against the manifest weight of the evidence.
{¶22} A juvenile court’s decision to grant permanent custody will not be reversed as being against the manifest weight of the evidence “if the record contains some competent, credible evidence from which the court could have found that the essential statutory elements for permanent custody had been established by clear and convincing evidence.” In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16; In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48. In determining whether a juvenile court based its decision on clear and convincing evidence, a reviewing court will examine the record to determine whether the trier of fact had sufficient evidence before it to satisfy the degree of proof. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24, citing State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
{¶23} In order to grant permanent custody to CCDCFS pursuant to
(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.
{¶24} The time period for meeting the conditions set forth in
{¶26} Here, as to the first part of the court’s finding, the juvenile court in this matter concluded that K.W. had not been in the custody of CCDCFS for 12 or more months of the past 22 months, and that she “cannot be placed” with appellant “within a reasonable time or should not be placed with either parent.” The court specifically listed
(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 parents have failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home.
{¶27} Regarding this factor, a parent’s substantial compliance with a caseplan is not dispositive in and of itself on the issue of reunification and does not preclude a grant of permanent custody to a social services agency. In re A.G., 8th Dist. Cuyahoga No. 105254, 2017-Ohio-6892, ¶ 39; In re J.M., 8th Dist. Cuyahoga No. 104030, 2016-Ohio-7307, ¶ 49. The crucial issue is whether the parent has remedied the conditions that caused the child’s removal. Id.
{¶28} In this matter, we find competent, credible evidence in the record to support the trial court’s findings that appellant would not be able to parent her child within a reasonable time
{¶29} This portion of the first assigned error is without merit.
Hearsay
{¶30} Appellant also argues within this assigned error that the trial court impermissibly relied upon hearsay evidence in this matter, and that hearsay tainted the proceedings.
{¶31} Hearsay is not admissible at permanent custody hearings. In re M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 48. However, the trial judge is presumed capable of disregarding improper testimony. In re W.C., 8th Dist. Cuyahoga No. 90748, 2008-Ohio-2047, ¶ 33, citing In re Sims, 13 Ohio App.3d 37, 41, 468 N.E.2d 111 (12th Dist.1983). Therefore, a reviewing court should be reluctant to overturn a judgment due to the admission of inadmissible
{¶32} In this matter, appellant complains that the court relied upon inadmissible hearsay in reference to events occurring in the foster home. However, the court simply stated that visitation was suspended “over [K.W.’s] behavioral concerns relating to the visits,” which included withdrawal and self-harming. Appellant also complains that the court impermissibly cited her “guarded responses” during appellant’s mental health assessments. Although this hearsay was referenced by the court, the court additionally noted that no diagnoses could be made. Therefore, the hearsay was not relied upon for the truth of the matter asserted, but only to demonstrate that the assessment did not lead to a productive avenue toward reunification.
{¶33} Appellant also complains that the entire record was tainted with hearsay. However, the overwhelming amount of testimony and the court’s findings involved the firsthand observations and experiences of the witnesses who interacted with K.W. and appellant. Other challenged items qualified as statements made in furtherance of medical diagnosis and treatment, and admissions of a party opponent. In short, we cannot say that the admission of hearsay testimony prejudiced the proceedings.
{¶34} This aspect of the assigned error is without merit.
{¶35} The first assigned error is without merit.
Best Interests
{¶36} In her third assigned error, appellant asserts that the trial court’s determination that the award of permanent custody to CCDCFS is in K.W.’s best interest is against the manifest weight of the evidence.
the child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two-month period, * * * 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.
The court reached this conclusion herein, applying
{¶38} Second, the juvenile court must find by clear and convincing evidence that granting permanent custody to the agency is in the best interest of the child.
{¶39} The juvenile court has considerable discretion in weighing these factors. In re J.H. at ¶ 53. The best interest determination focuses on the child, not the parent. In re A.C., 8th Dist. Cuyahoga No. 105347, 2018-Ohio-386, ¶ 36; In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 59.
{¶41} From all of the foregoing, the trial court correctly determined, based upon K.W.’s interactions, relationships, expressed wishes, custodial history, and need for a legally secure permanent placement, that the award of permanent custody to CCDCFS is in K.W.’s best interest. Based on the facts in the record, we find clear and convincing evidence to support the juvenile court’s findings under
{¶42} The third assigned error is without merit.
Reasonable Efforts
{¶44} In this case, the juvenile court cited
[A]t any hearing * * * at which the court removes a child from the child’s home or continues the removal of a child from the child’s home, the court shall determine whether the public children services agency * * * that filed the complaint in the case, removed the child from home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child’s home, to eliminate the continued removal of the child from the child’s home, or to make it possible for the child to return safely home. The agency shall have the burden of proving that it has made those reasonable efforts. * * *.
{¶45} The “diligent efforts” required of the agency under this section are typically set forth in a caseplan adopted pursuant to
{¶46} In this case, the record supports the juvenile court’s determination that CCDCFS used reasonable case planning and diligent efforts to promote reunification and eliminate the items causing K.W.’s removal. CCDCFS established a case-plan, provided a Community Collaborative specialist to further assist appellant when she had difficulty accomplishing case-plan objectives, and referred appellant for neuropsychological and psychological assessments. CCDCFS also provided additional instruction regarding appellant’s behavior at K.W.’s medical appointments, provided a visitation coach, and a therapist for K.W., all in an effort to facilitate reunification and address the problems leading to K.W.’s removal.
{¶47} Moreover, with regard to the lack of mother-daughter counseling, the record demonstrates that it would not be in K.W.’s best interest to pursue this counseling because appellant is one of K.W.’s “triggers,” and appellant’s visitation was suspended.
{¶48} Accordingly, the trial court’s finding that CCDCFS made reasonable efforts to prevent the removal or continued removal of K.W. was supported by competent, credible evidence in the record.
{¶49} The second assigned error is without merit.
{¶51} 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 to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR