IN RE M.B.
No. 109187
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 9, 2020
2020-Ohio-1391
EILEEN A. GALLAGHER, J.
A Minor Child [Appeal By M.B. I, Father]
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 9, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD18912240
Appearances:
Michael H. Murphy, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Rachel Matgouranis, Assistant Prosecuting Attorney, for appellee Cuyahoga County Division of Children and Family Services.
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant-father M.B. I (“Father“)1 appeals from the decision of the Juvenile Division of the Cuyahoga County Court of Common Pleas (“the juvenile
Factual Background and Procedural History
{¶ 2} M.B. II was born on October 1, 2018 to S.H. (“Mother“). On October 3, 2018, appellee CCDCFS filed a complaint for abuse, dependency and permanent custody of M.B. II with the juvenile court, alleging M.B. II to be an abused and dependent child due to his parents’ chronic substance abuse problems and inability to provide appropriate care for the child. The agency also filed a motion for predispositional temporary custody, alleging that M.B. II was in immediate danger from his surroundings and that removal was necessary to prevent immediate or threatened physical or emotional harm. Supporting this motion was an affidavit from Shonte Frazier, a social worker with CCDCFS, who averred that the child was ready to be discharged from the hospital and that (1) at the time of his birth, the child had tested positive for cocaine and Mother had tested positive for marijuana and cocaine and (2) Mother had tested positive for marijuana and cocaine throughout the pregnancy. Ms. Frazier also averred that Mother had cognitive delays that interfered with her ability to provide appropriate care for the child, lacked appropriate housing and was unable to provide for the basic needs of the child. Ms. Frazier further averred that although Mother was legally married, Mother and the child‘s legally presumed father, B.H., had been estranged for many years
{¶ 3} On October 3, 2018, M.B. II was committed to the emergency temporary care and custody of CCDCFS.
{¶ 4} On April 26, 2019, CCDCFS filed an amended complaint for abuse, dependency and permanent custody of M.B. II with the juvenile court. The amended complaint reiterated the allegations set forth in the original complaint but added that Mother had eight older children who had been adjudicated and removed from her care due to her chronic substance abuse problems and cognitive delays, that her parental rights had been involuntarily terminated for five of those children and that legal custody of the remaining three children was vested with relatives. The amended complaint also identified M.B. I as the child‘s father and alleged that (1) he had a substance abuse problem, specifically cocaine and alcohol, which interfered with his ability to provide appropriate care for the child, and (2) he lacked appropriate judgment and parenting skills to otherwise provide appropriate care for the child.
{¶ 5} Father admitted the allegations of the amended complaint that pertained to him and, on July 18, 2019, the juvenile court adjudicated the child abused and dependent. The matter was continued for a dispositional hearing, which was held on August 27, 2019.
{¶ 6} At the time of the hearing, M.B. II was nearly 11 months old and had been in CCDCFS custody for virtually his entire life. At the hearing, evidence was
{¶ 7} Andrea Flynn, a social worker with CCDCFS, testified that she received the case in November 2018. She explained the reasoning for the removal of M.B. II and the case plan objectives designed for Father. She testified that the case plan objectives for Father did not originally include substance abuse treatment because he denied any substance abuse. She stated, however, drug treatment was added to the case plan after Father submitted a positive urine sample and that his drugs of choice are cocaine and alcohol. A mental health assessment was completed and it was determined that Father had no issues, so there were no recommendations as to mental health services.
{¶ 8} According to Ms. Flynn, Father did participate in substance abuse treatment programs but submitted positive urine specimens throughout treatment. Although he completed treatment, he continued to use drugs and did not benefit from the programs.
{¶ 9} Ms. Flynn testified that Father regularly participated in supervised visitation with the child for two hours a week. She further testified that, for 16 weeks, Father had a parenting coach, “who hands-on would instruct this is how you do this
{¶ 10} Father also testified at the hearing. Father testified that he was then 67 years old, that M.B. II was his only child, and that he is, himself, a product of foster care. Father testified that he receives $750 a month in Social Security benefits as a retiree and that he does “like odd and end job[s]” for which he receives “another I would say 400 or $500 a month.”
{¶ 11} Father admitted to using drugs and alcohol for “over 40 some years” and said he had been in drug treatment in the past but admittedly submitted several positive urine specimens while in treatment. Father claimed that he was trying to turn his life around so that he could be part of his son‘s life and stated that he now attends two Alcoholics Anonymous (“AA“) and Narcotics Anonymous (“NA“) meetings a week. CCDCFS social worker Flynn testified that she had requested, in May 2019, that Father provide documentation confirming his attendance at these meetings but that Father failed to comply.
{¶ 12} Father acknowledged that he still “need[ed] a little help” performing basic parenting skills, such as diaper changing, and testified that he was “working
{¶ 13} Finally, the child‘s guardian ad litem, Susan Jankite, testified regarding her recommendation. Ms. Jankite testified that she had made a home visit to Father‘s residence in December 2018, and that, based upon what she heard at the hearing, was concerned about the lack of progress on Father‘s part, specifically, as to Father‘s appreciation that the child is young and developing and Father‘s understanding of the parenting needs of the child during the most crucial period of the child‘s life. Ms. Jankite stated that she was present for a supervised visit between Father and M.B. II in July 2019 and that she observed “some positive interactions between father and child” during that visit but that she had “a few concerns as well.” Ms. Jankite was of the opinion that “[F]ather‘s ability to remain focused and stay[] on the task appeared to be lacking.” She recommended that permanent custody be granted to the agency with the end goal of adoption.
{¶ 14} On September 27, 2019, the juvenile court issued a written journal entry, terminating the prior order granting temporary custody of M.B. II to CCDCFS, granting permanent custody of M.B. II to CCDCFS and terminating all parental rights and responsibilities of Mother and Father. The juvenile court found, by clear and convincing evidence that granting permanent custody of M.B. II to CCDCFS was in the best interest of the child and that the child could not be placed with either of the child‘s parents within a reasonable time or should not be placed with the parents. Specifically, as it relates to Father, the juvenile court further found:
The objectives of the case plan required the Father, [M.B. I], to successfully address his substance abuse and parenting issues. Mr. [B.] has failed to benefit from case plan services and has failed to remedy the concerns relating to his substance abuse and lack of appropriate judgment and parenting skills. - Father, [M.B. I], has a chronic substance abuse problem relating to cocaine and alcohol. Mr. [B.] has had a chronic substance abuse problem for the last 40 years. Mr. [B.] is engaged in IOP substance abuse treatment but failed to maintain sobriety and failed to benefit from treatment. Mr. [B.] continued to repeatedly test positive for cocaine and alcohol throughout the entire time he was engaging in substance abuse treatment and after completing treatment. Mr. [B.] has failed to provide any documentation of attendance at AA meetings, despite requests for such documentation from the assigned CCDCFS case worker. Mr. [B.] has failed to demonstrate or maintain sobriety. He has failed continuously and repeatedly to remedy the concerns regarding his chronic substance abuse that led to the child‘s removal.
- Despite receiving supportive parenting services and parenting classes, Mr. [B.] continues to lack appropriate judgment and parenting skills to be able to provide appropriate care for the child. Mr. [B.] failed to benefit from the supporting parenting services and parenting classes. Mr. [B.] is unable to properly feed the child or provide appropriate parental care. Additionally, Mr. [B.] has stated on multiple occasions that his intentions are to just engage in case plan services in order to gain custody so that he can then give custody of the child to the maternal aunt who is an inappropriate, unsafe and unsuitable daughter [sic]. Mr. [B.] ha[s] failed continuously and repeatedly to remedy the concerns regarding hi[s] parenting skills and judgment that led to the child‘s removal.
- The child has been placed in the same foster home since birth, and it is a protective adoptive home. The child is placed in the same home as his biological sibling, who has been adopted by the foster family. The child is very bonded with his biological sibling and his foster sibling, both of whom reside in the home with him. The child has been thriving in his placement with his current caregivers who are willing and able to provide a permanent home through adoption.
The child is in need of permanency and a legally secure placement that cannot be attained without a grant of Permanent Custody. - The child‘s Guardian ad Litem recommended Permanent Custody of the child be granted to CCDCFS.
* * *
Upon due consideration of the interaction and interrelationship of the child with the child‘s parents, siblings, relatives, and foster parents; the wishes of the child; the custodial history of the child, including whether the child has been in temporary custody of a public children services agency or private child placing agency under one or more separate orders of disposition 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; and, the report of the Guardian ad Litem, the Court finds by clear and convincing evidence that a grant of permanent custody is in the best interests of the child and the child cannot be placed with one of the child‘s parents within a reasonable time or should not be placed with either parent.
The Court further finds that: * * *
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.
The * * * chemical dependency of the parent * * * is so severe that it makes the parents unable to provide an adequate home for the child at the present time and, as anticipated, within one year from the time the Court holds the hearing.
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. * * *
Assignment of Error No. I: The granting of the agency‘s complaint for permanent custody of [M.B. II] is against the manifest weight of the evidence.
Assignment of Error No. II: The trial court erred by granting the agency‘s complaint for permanent custody against Father, as the agency failed to meet its burden of either prong required under R.C. 2151.414.
{¶ 16} Father‘s first and second assignments of error are interrelated. Accordingly, we address them together.
Law and Analysis
{¶ 17} The right to raise one‘s own child is “‘an essential and basic civil right.‘” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990) (a parent has a “‘fundamental liberty interest’ in the care, custody, and management” of his or her child), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, this right is not absolute. It is “‘always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.‘” In re L.D., 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{¶ 18} Because termination of parental rights is “‘the family law equivalent of the death penalty in a criminal case,‘” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,
Standard for Terminating Parental Rights and Granting Permanent Custody to CCDCFS
{¶ 19} An agency may obtain permanent custody of a child in two ways. In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 44 (8th Dist.), citing In re E.P., 12th Dist. Fayette 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 under
{¶ 21} “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 G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16. “Clear and convincing evidence” is that “measure or degree of proof” that “produce[s] in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S., 2015-Ohio-1028, at ¶ 8.
{¶ 22} Under
(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. * * *
(2) Chronic mental illness, chronic emotional illness, intellectual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
* * *
(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.
* * *
(16) Any other factor the court considers relevant.
{¶ 23} Therefore, the juvenile court found by clear and convincing evidence that
{¶ 24} As it relates to Father, the record contains competent, credible, clear and convincing evidence supporting these findings and the juvenile court‘s determination that M.B. II could not be placed with Father within a reasonable time or should not be placed with Father.
Best Interest of the Child
{¶ 25} The best-interest determination, focuses on the child, not the parent. In re N.B., 2015-Ohio-314, at ¶ 59. In determining whether permanent custody is in the best interest of the child under
(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 * * *;
(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 [
R.C. 2151.414(E)(7) to(11) ] apply in relation to the parents and child.
{¶ 26} Father challenges the trial court‘s findings that “the child‘s need for legally secure placement can be achieved only with permanent custody being granted to CCDCFS” and that granting permanent custody of M.B. II to CCDCFS is in the child‘s best interest. He contends that these findings are against the manifest weight of the evidence because: (1) “[i]t was clear by the Agency‘s testimony that the Father and child had visitation and that it had gone well” and that Father “felt a bond with his young son“; (2) it was undisputed that Father had completed drug treatment twice, completed parenting services and completed a mental health evaluation (as to which no recommendations were made); (3) Father testified that he “wants his son to be with him,” “is willing to provide for [him],” “is willing to do whatever else is necessary to keep him healthy and safe” and has “sober, able people in his life who were willing to help him with his son” and (4) there was no evidence that any factor listed in
{¶ 27} The juvenile court has considerable discretion in weighing the
{¶ 28} The juvenile court is required to consider each factor listed in
{¶ 29} Although Father claims he “completed” most of the services specified in his case plan, “substantial compliance with a case plan” is not, in and of itself, “dispositive” and “does not preclude a grant of permanent custody to a social services agency.” In re J.B., 2013-Ohio-1704, at ¶ 90, citing In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.). Simply because a parent completes the terms of a case plan does not mean he or she has achieved the goals of the plan or has substantially remedied the conditions that caused the child to be removed. In re J.B. at ¶ 90. “‘The issue is not whether the parent has substantially complied with the case plan, but whether the parent has substantially remedied the conditions that caused the child‘s removal.‘” In re J.B. at ¶ 90, quoting In re McKenzie, 9th Dist. Wayne No. 95CA0015, 1995 Ohio App. LEXIS 4618, 11 (Oct. 18, 1995).
{¶ 31} Father appears to have genuine affection for M.B. II; however, Father continues to struggle with lifelong substance abuse, he has not demonstrated that he can independently parent M.B. II and meet his basic needs and there is no indication that Father would be able to independently care for and meet the basic needs of M.B. II at any time in the foreseeable future.
{¶ 32} As detailed above, in its September 27, 2019 journal entry awarding permanent custody to CCDCFS, the juvenile court identified each of the relevant factors it considered under
{¶ 34} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR