IN RE: M.B., A Minor Child (Appeal by Mother)
No. 96724
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 15, 2011
2011-Ohio-4645
S. Gallagher, J., Boyle, P.J., and Jones, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 10918109. JUDGMENT: AFFIRMED.
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE, STATE OF OHIO
William D. Mason
Cuyahoga County Prosecutor
BY: Janna R. Steinruck
Assistant Prosecuting Attorney
C.C.D.C.F.S.
3955 Euclid Avenue
Cleveland, Ohio 44115
GUARDIAN AD LITEM
Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129
{¶ 1} Appellant mother appeals the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, to award permanent custody of her child, M.B.,1 to the Cuyahoga County Department of Children and Family Services (“CCDCFS“). Finding no error in the proceedings below, we affirm.
{¶ 2} Mother gave birth to M.B. on September 8, 2008. She has nine children. Five of her children were or are in the permanent custody of CCDCFS, and the other three are in the legal custody of their biological father. Before M.B.‘s birth, during mother‘s first or second trimester, she tested positive for cocaine and CCDCFS received a referral. CCDCFS assigned Regina Quigley with the START unit to the case. The START unit provides weekly, specialized services for mothers who test positive for alcohol or drugs during their pregnancies. After M.B.‘s birth, mother and child entered an inpatient substance abuse treatment program. Mother was discharged because of health reasons.
{¶ 3} Shortly thereafter, mother relapsed on cocaine and entered a second inpatient treatment program. During the second treatment program in January 2009, mother was convicted on drug and prostitution charges and sentenced to six months of incarceration. Upon being released, mother lived with her brother for six to seven months.
{¶ 5} After the surgery, mother was admitted to a nursing home for rehabilitation. She discharged herself. Mother‘s brother (“brother“) helped care for M.B. During this time, CCDCFS was concerned about M.B.‘s developmental delays. M.B. was ultimately diagnosed with autism and pica, a condition stemming from lead poisoning: the former diagnosis occurring in August 2010 and the latter in September 2010. CCDCFS conceded that brother met M.B.‘s basic needs at this time. However, Help Me Grow, an organization that assists children with developmental delays, became involved with M.B. because of the diagnoses. Help Me Grow suggested that M.B. should participate in occupational, physical, and speech therapy. Brother failed to ensure that M.B. attended the additional appointments. In September 2010, mother was again arrested on drug charges.
{¶ 7} Mother‘s case plan objectives were to receive mental and substance abuse treatment, receive parenting education, and obtain housing. Mother failed to complete any drug treatment program through the date of the dispositional hearing, which took place in March 2011, although she started to seek new treatments. Mother also was diagnosed with anxiety, post-traumatic stress disorder, and depression. While she acknowledges that she consistently failed to follow her mental health doctor‘s recommendation, as of the dispositional hearing she made efforts to reconnect with her mental health counselor and re-enroll in treatment programs.
{¶ 8} Mother was also aware of M.B.‘s developmental needs and understood the corresponding, higher level of care needed to address these concerns. Neither CCDCFS nor Help Me Grow representatives thought that mother would be able to provide the level of care needed to address M.B.‘s needs. While mother relied on brother for support, CCDCFS grew concerned that brother was also using drugs or alcohol. The guardian ad litem assigned to
{¶ 9} After hearing all the evidence and arguments presented at the adjudicatory and dispositional hearings, the juvenile court terminated mother‘s and father‘s parental rights and granted CCDCFS permanent custody of M.B. It is from this decision that mother2 timely appeals, raising two assignments of error. We will address each in turn.
{¶ 10} Mother‘s first assignment of error provides as follows: “The trial court erred by adjudicating the child neglected and dependent and by awarding permanent custody to CCDCFS based on improperly admitted hearsay evidence.” Mother challenges on hearsay grounds the admissibility of statements made by the representatives from CCDCFS and Help Me Grow that doctors diagnosed M.B. with autism and pica. Mother‘s first assignment of error is without merit.
{¶ 11} The admission of evidence lies within the broad discretion of the trial court. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 239, 2005-Ohio-4787, 834 N.E.2d 323. A reviewing court will uphold an evidentiary decision absent an abuse of discretion that has affected the substantial rights of the adverse party or is inconsistent with substantial justice. Id. We note that not only did mother fail to object to the admission of the diagnoses, but also
{¶ 12} Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶ 13} In this case, the representatives for CCDCFS and Help Me Grow and mother herself acted on the diagnoses and created a specialized plan for M.B. to follow. The evidence that the doctors diagnosed M.B. with autism and pica was not admitted for the truth of the matter asserted. Rather, it was admitted to explain CCDCFS‘s and Help Me Grow‘s actions in setting up a case plan for M.B. It is irrelevant whether the diagnoses are actually correct. The fact remains that both agencies believed they had to treat M.B. differently because of the diagnoses. Whether the diagnoses are correct is a completely separate matter, one not raised by mother at the juvenile court level and therefore beyond the scope of this appeal. The trial court did not, therefore, err in admitting the non-hearsay statements, and mother‘s first assignment of error is overruled.
{¶ 15} A court is required to grant permanent custody of a child to CCDCFS if, by clear and convincing evidence, it determines, based on a two-prong test, that (1) one of the conditions set out in
{¶ 16} As it relates to the current case,
{¶ 17} Finally, if the above is resolved in favor of awarding permanent custody, the court must determine, under the second prong, whether permanent custody is in the best interest of the child based on, but not limited to, the five factors listed in
{¶ 18} The record demonstrates that the juvenile court considered all the applicable factors and that its award of permanent custody to CCDCFS was supported by clear and convincing evidence. The court considered the interaction and interrelationship of M.B. with his mother, relatives, and foster family; the custodial history of the child; M.B.‘s need for
{¶ 19} The juvenile court found that M.B. was not abandoned or orphaned and was not in the temporary custody of CCDCFS for 12 or more months during a consecutive 22-month period. Mother does not dispute this finding, and our focus, therefore, shifts to determining whether M.B. could be placed with mother within a reasonable time based on the factors enumerated in
{¶ 20} The juvenile court found that following the placement of M.B. outside the child‘s home, and notwithstanding reasonable case planning and diligent efforts by the agency to assist mother to remedy the problems that initially caused the child to be placed outside the home, mother failed continuously to substantially remedy the conditions that first caused M.B. to be placed outside the home; that the chronic emotional illness or chemical dependency of mother is so severe that it makes her unable to provide an adequate permanent home for M.B. at the present time and within one year from the date of the dispositional hearing; and mother had her parental rights terminated with respect to at least one of M.B.‘s siblings and failed to show by clear and convincing evidence that notwithstanding the prior termination, she can provide M.B. a legally secure permanent placement and adequate care for the health, safety, and welfare of M.B. These findings comport with
{¶ 22} Mother has been arrested on drug-related charges on two occasions during M.B.‘s short life and was unable to maintain a stable residence. She lived with brother for a period of time, interrupted by periods of incarceration on the drug offenses. Brother has not sought legal custody of M.B. and failed to ensure that M.B. was taken to the additional appointments necessitated by the autism and pica diagnoses. Thus, mother‘s chemical addiction has not been remedied and prevents her from providing an adequate permanent home for M.B. See
{¶ 24} Finally, having resolved the first prong in favor of awarding permanent custody to CCDCFS, we must consider whether awarding permanent custody is in the best interest of M.B.
{¶ 25} The juvenile court found that mother had her parental rights terminated with respect to all eight of M.B.‘s siblings and failed to prove, by clear and convincing evidence, that she could provide a legally secure, permanent placement for M.B.
{¶ 26} The trial court‘s determination to award permanent custody to the agency was based on clear and convincing evidence, and the termination of parental rights was also not against the manifest weight of the evidence. The trial court did not abuse its discretion by granting permanent custody to CCDCFS as such action was required under
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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR