IN RE: M.S., ET AL.
Nos. 102127 and 102128
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 14, 2015
2015-Ohio-1847
E.A. Gallagher, J., Jones, P.J., and E.T. Gallagher, J.
Minor Children [Appeal By F.S., Father]
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 11909571 and AD 119109572
RELEASED AND JOURNALIZED: May 14, 2015
Wildon V. Ellison
12020 Lake Avenue, Suite 205
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Michelle O. Murray
Rachel V. Eisenberg
Assistant Prosecuting Attorneys
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44145
MOTHER
C.S., pro se
2633 East 73rd Street
Cleveland, Ohio 44104
GUARDIAN AD LITEM FOR M.S. AND J.S.
Thomas Robinson
Law Office of Thomas B. Robinson, L.L.C.
P.O. Box 110298
Cleveland, Ohio 44111
ATTORNEY FOR M.S.
Judith Kowalski
333 Babbit Road, #323
Euclid, Ohio 44125
Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070
GUARDIAN AD LITEM FOR MOTHER, C.S
Martinez Heddesheime
Elba Gisella
21645 Country Way
Strongsville, Ohio 44149
{¶1} In this consolidated appeal, defendant-appellant F.S., the father, appeals from the Cuyahoga County Juvenile Division Court‘s decisions granting permanent custody of his daughter, M.S., and son, J.S., to the Cuyahoga County Department of Children and Family Services (“CCDCFS”). For the following reasons, we reverse and remand.
Factual and Procedural Background
Initial Period of Temporary Custody
{¶2} On May 25, 2011, appellant‘s minor children, M.S. (date of birth November 2, 2006) and J.S. (date of birth April 29, 2009) were removed from the custody of appellant and the children‘s mother (the “mother”)1 pursuant to an ex-parte telephonic order. The next day, CCDCFS filed a complaint and a motion for pre-dispositional temporary custody. The complaint alleged that M.S. and J.S. were neglected because the parents had no stable housing for the children, had substance abuse problems that prevented them from providing safe and adequate care for the children and had a history of engaging in domestic violence in front of the children, placing them at risk. The trial court granted CCDCFS emergency temporary custody of the children.
{¶3} On July 25, 2011, appellant and the mother stipulated to the allegations of an amended complaint and the children were adjudicated to be neglected.2 A case plan was
approved that was designed to reunite the children with their parents. Under the case plan, appellant and the mother were to successfully complete a domestic violence program, successfully complete a drug and alcohol program, live a life free of drug use, submit to regular urine screens, successfully complete a parenting education program, attend employment services if unable to locate employment on their own and maintain clean and stable housing. In addition, because he had reported a history of depression, appellant was to undergo a mental health evaluation and to follow any related recommendations related to his mental health.
Return of M.S. and J.S. to the Custody of Their Parents
{¶4} In August 2011, following a dispositional hearing, the children were returned to their parents and placed in the protective supervision of CCDCFS. As of that time, appellant had made substantial progress toward completion of the case plan. He had completed parenting education classes, a drug and alcohol treatment program and a psychological evaluation and was involved with a domestic violence program. In addition, the mother had completed parenting classes, was attending a drug and alcohol treatment program and domestic violence classes and had obtained employment. The parents had established stable and appropriate housing for the children.
{¶6} After the children were returned to their parents, appellant initially continued with services but then suffered a relapse. Marilyn Henderson, the CCDCFS social worker assigned to the case from August 2011 to September 2013, testified that she would sometimes receive voicemail messages from appellant in which he indicated that the mother was drinking and out of control and that he wanted to leave with the children. Henderson testified that in response to these calls, she recommended that appellant go to a shelter, which he did from time to time. She testified that in 2012 when appellant moved out with the children, initially, “he did pretty well with the kids.” M.S. was enrolled in school, and appellant made progress on services. Rachel Redcross, a
{¶7} In or around December 2012 or January 2013, however, appellant was asked to leave the shelter at which he had been staying with the children due to non-compliance with its rules. Henderson testified that appellant failed to notify CCDCFS of his and the children‘s whereabouts and that he was ultimately found back at the mother‘s apartment.
{¶8} On January 23, 2013, CCDCFS filed a motion to modify protective supervision to temporary custody and to withdraw its prior motion to extend protective supervision. According to Henderson, the factors that led CCDCFS to seek temporary custody of the children included that M.S. had missed approximately 58 days of kindergarten,3 continuing domestic violence and ongoing marijuana and alcohol use by the parents that Henderson believed to be a “trigger” for domestic violence. Following a
Second Period of Temporary Custody
{¶9} For several months after the children were placed in the temporary custody of CCDCFS a second time, the parents made little progress. Henderson and Larry Epstein, the supervisor who oversaw the handling of the case at CCDCFS, testified that the mother was in and out of drug treatment. She failed to complete any drug treatment or domestic violence programs, failed to maintain her sobriety and only intermittently received mental health services.
{¶10} With respect to appellant, Henderson testified that despite having previously completed a drug treatment program, appellant had several positive drug tests for alcohol or marijuana and refused to submit to other drug screens. In addition, despite having completed a domestic violence program, appellant committed another act of domestic violence against the mother in June 2013. Although the children did not witness the domestic violence itself, they witnessed appellant‘s arrest when the children were present for an in-home visit with the parents in July 2013. Henderson testified that appellant also failed to consistently receive counseling for his mental health issues.
{¶11} Because the prior programs the parents had participated in did not have the desired impact, Henderson testified that an amended case plan was approved, pursuant to which the parents were to once again complete parenting education classes, drug
{¶12} On November 27, 2013, CCDCFS filed a motion for permanent custody of the children. Appellant and the mother thereafter filed separate motions for legal custody. A hearing on the motions was held on September 11, 2014.
{¶13} In the fall of 2013, appellant once again became more actively involved in services, completing a second parenting education program in October 2013. However, CCDCFS claimed that he had made no significant progress with respect to the domestic violence, drug treatment or mental health aspects of the amended case plan. Henderson testified that although appellant was reportedly planning to participate in a domestic intervention education and training program in connection with his 2013 domestic violence conviction, CCDCFS received no information confirming that he had, in fact, participated in the program.4
{¶14} Epstein testified that shortly before the September 2014 hearing, appellant had started a new drug and alcohol treatment program and had taken steps to continue with his mental health counseling (which he had stopped attending five months earlier) but that much remained to be done to comply with the amended case plan.
{¶16} Epstein and Henderson testified that when the children were removed from the custody of their parents they were found to be healthy. There were no signs of any maltreatment or physical abuse by the parents. Although Henderson and Epstein expressed continuing concerns regarding the children being exposed to domestic violence between the parents in the home, they had no concerns regarding appellant‘s ability to otherwise properly care for and parent his children. Henderson testified that “it‘s what happens when [the parents] are together,” i.e., “the fighting and the chaos that the family are involved in that creates the problem.” Whenever appellant went back to the mother “the chaos and the fighting continued.” Epstein testified that he supported permanent custody in the case because “[t]hese kids need stable caregivers” and that in his view, neither parent could properly “care for their children separately or together until they get the services they need.”
{¶17} With respect to how the children were progressing in their foster care placement, Henderson and Epstein testified that while in foster care, the children‘s needs were being met and that the children were receiving counseling for behavioral issues. They testified that M.S.‘s behavioral issues and school performance were reportedly
{¶18} Throughout the time the children were in temporary custody, the parents maintained regular, consistent visitation with their children.5 It was undisputed that appellant had a very good, healthy, affectionate and appropriate relationship with his children. No monitoring or supervision of visitation was necessary. Henderson described appellant as a “hands on” father who was very affectionate and “involved” with his children. Henderson, Epstein and Redcross each testified that the children clearly loved their parents, wanted to be with their parents and were very happy when they were with their parents. Epstein testified, however, that he did not believe the strong familial bond between the parents and children was enough “not to pursue permanent custody.” He testified that because of the history of domestic violence between the parents and their continued marijuana and alcohol use, “you never know what‘s going to happen” and that, in his view, the children have “just been lucky that they have not been hurt or injured.”
{¶19} Epstein testified that neither parent had any relatives who served as any type of “support system” for the family or with whom the children could be placed apart from
The Guardian ad Litem‘s Report and Recommendation
{¶20} The trial court also heard from the children‘s guardian ad litem (“GAL”).6 The GAL submitted a report in which he recommended that permanent custody be granted to CCDCFS and testified regarding his recommendation at the hearing. The mother and appellant objected to the GAL‘s report on the ground that it was not filed seven days before the hearing7 as required under
The father has had one domestic violence conviction where the mother was the victim, and he had another arrest for domestic violence against the mother, but that case was dropped for want of prosecution. To me, the drug problem is not as important as the domestic violence problem is. The parents have allegedly moved out of their home together and secured independent housing. Unfortunately, they still appear to be involved, because upon my arrival at the mother‘s home for a home visit one morning, I discovered the father, who had just woken up, and had showered and left her apartment. I have great concerns about the mother‘s well-being in this relationship. She seems to be extremely scared of the father, and does not seem to be able to remove herself from his influence. She has been offered opportunities to separate herself from him, but has not been able to do so.
This is even more saddening, when you consider that the mother has a loving relationship with the children, who wish to be with her. No one can doubt the mother‘s love for the children, which can be easily seen as she talks about them. The problem still remains: the existence of this domestically violent relationship will put the children at risk.
{¶23} The GAL offered a similar view at the hearing. He testified that his recommendations had not changed based on the testimony presented and that the primary reason he recommended that permanent custody be awarded to CCDCFS was “domestic violence issues” and his concern that if the children were returned to the parents they would be at risk of physical danger or psychological injury from witnessing acts of domestic violence involving their parents:
Q. [Counsel for CCDCFS]: * * * You are recommending permanent custody?
A. I am.
Q. Why?
A. The concern I have isn‘t necessarily the drug issues that the parents may or may not still have. It‘s domestic violence issues.
In discussing with the mother, I talked to somebody who seemed afraid of the father. I didn‘t necessarily get to visit the father‘s home. We had a visit set up and he was unavailable at that visit, but when I went to visit the mother‘s home, the father was there and she indicated today that they‘re living together.
Based on their past history and while the children may not have been injured, I echo [the] concerns that anytime children are in the presence of domestic violence, they‘re placed at risk, and at this point I think the danger is too great for the children to be returned to the parents. * * *
THE WITNESS: * * * I think that, yes, physical injury is not the only concern. Emotional damage can arise from simply witnessing or hearing domestic violence acts.
THE COURT: Psychological injury?
THE WITNESS: Psychological injury, yes.
{¶24} On October 10, 2014, after hearing testimony from Henderson, Epstein, Redcross, the mother, the mother‘s mental health counselor and the GAL, the trial court terminated both parents’ parental rights and awarded permanent custody of the children to CCDCFS.
{¶25} Appellant appealed8 and has assigned the following two assignments of error for review:
Assignment of Error I: The trial court erred to the prejudice of appellant in granting permanent custody, when guardian ad litem‘s investigation and report were inadequate and fell below the minimum standard required.
Assignment of Error II: The trial court committed error to the prejudice of appellant, contrary to the sufficiency and manifest weight of the evidence by determining permanent custody was in the children[‘s] best interest.
Law and Analysis
{¶26} We take our responsibility in reviewing cases involving the termination of parental rights and the award of permanent custody very seriously. ‘“All children have
Standard for Terminating Parental Rights and Awarding Permanent Custody to CCDCFS
{¶27} To terminate parental rights and grant permanent custody to a county agency, the trial court must find by clear and convincing evidence: (1) the existence of any one of the conditions set forth in
{¶28} The conditions set forth in
(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.
{¶29} In determining whether permanent custody is in the best interest of the child,
(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.
{¶30} “Clear and convincing evidence” is that measure or degree of proof that is more than a “preponderance of the evidence,” but does not rise to the level of certainty required by the “beyond a reasonable doubt” standard in criminal cases. In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It “produces in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re M.S. at ¶ 18; see also In re J.F., 11th Dist. Trumbull No. 2011-T-0078, 2011-Ohio-6695, ¶ 67 (a permanent custody decision “‘based on clear and convincing evidence requires overwhelming facts, not the mere calculation of future
{¶31} We review a trial court‘s determination of a child‘s best interest under
Deficiencies in GAL‘s Investigation and Report
{¶32} In his first assignment of error, appellant contends that the trial court erred in proceeding with the permanent custody hearing and granting permanent custody to CCDCFS because the GAL‘s report and investigation failed to comply with
{¶34}
shall perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child.
A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child‘s best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with each parent, foster parent, guardian or physical custodian and conduct at least one interview with the child where none of these individuals is present;
Visit the child at his or her residence in accordance with any standards established by the court in which the guardian ad litem is appointed; - Ascertain the wishes of the child;
- Meet with and interview the parties, foster parents and other significant individuals who may have relevant knowledge regarding the issues of the case;
- Review pleadings and other relevant court documents in the case in which the guardian ad litem is appointed;
- Review criminal, civil, educational and administrative records pertaining to the child and, if appropriate, to the child‘s family or to other parties in the case;
- Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
- Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; and
- Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.
{¶35}
A guardian ad litem shall prepare a written final report, including recommendations to the court, within the times set forth in this division. The report shall detail the activities performed, hearings attended, persons interviewed, documents reviewed, experts consulted and all other relevant information considered by the guardian ad litem in reaching the guardian ad litem‘s recommendations and in accomplishing the duties required by statute, by court rule, and in the court‘s Order of Appointment.
{¶36} In actions to terminate parental rights, “[a]ll reports, written or oral, shall be used by the court to ensure that the guardian ad litem has performed those responsibilities
{¶37} Appellant first argues that the trial court erred in proceeding with the permanent custody hearing because the (1) GAL‘s report was late9 and (2) the GAL misstated the case number in his report.
{¶38} Although it is undisputed that the GAL report was filed three days before the hearing instead of seven days before the hearing as specified in
{¶39} Likewise, there is nothing in the record to suggest that appellant was in any way prejudiced by the fact that the GAL listed the wrong case number on his report. The case number referenced in the GAL report was off by one digit. Typographical errors occur. Appellant does not contend that he did not recognize the GAL‘s report as relating to this case based on the error or was for some reason unable to promptly access the GAL‘s report as a result of the error. A motion to amend the case number referenced in the GAL‘s report was made and granted during the hearing. Because appellant has not established any prejudice resulting from the delay in the filing of the GAL‘s report or the typographical error in the case number, we find that the trial court did not abuse its discretion in proceeding with the hearing over these objections.
{¶40} Appellant also argues that the trial court erred in proceeding with the permanent custody hearing because (1) the GAL failed to list the dates he interviewed family members in his report and (2) the GAL failed to view an interactional visit between appellant and the children prior to making his permanent custody recommendation. He contends that, based on these deficiencies, the GAL‘s report and investigation fell below the minimum standards required by
{¶41} We agree with appellant that there appear to some serious deficiencies with the GAL‘s investigation and report in this case. CCDCFS asserts that the GAL
THE COURT: * * * There was a question about not having dates of when you did interviews or whatever. Offhand, do you know what your dates would be?
THE WITNESS: I interviewed the mother on July 26th, had an appointment scheduled for the father for I believe July 28th or 29th, which was unavailable. Father called me and left a message asking to reschedule.
I attempted to call him one time. I could not leave a message. I did not attempt to contact him after that, and I believe I saw the children on the 8th or the 9th of August. That I‘m not as certain of.
{¶42} Thus, it does not appear that the GAL interviewed appellant.10
{¶44} In this case, however, the report of the GAL was just one of the factors the trial court indicated it considered in determining that a grant of permanent custody to CCDCFS was in the best interests of M.S. and J.S. Counsel had the opportunity to cross-examine the GAL and to highlight the deficiencies in his investigation through that examination. Although a trial court is generally obligated to consider a recommendation of a guardian ad litem, it is “not bound to adopt” it. In re J.B., 8th Dist. Cuyahoga Nos. 98566 and 98567, 2013-Ohio-1706, ¶ 152. The “ultimate decision” is for the trial judge who “must act upon a consideration of all evidence presented.” Id., citing In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 34. It is unclear from the record to what
{¶45} As this court and others have recognized, “’
{¶46} Recognizing this hurdle, appellant urges us to follow Nolan v. Nolan, 4th Dist. Scioto No. 11CA3444, 2012-Ohio-3736. In Nolan, the trial court appointed a guardian ad litem to conduct an investigation and prepare a report regarding the child‘s best interest in a child custody case in which the father objected to the mother‘s request to terminate a shared parenting plan and to designate her as the child‘s residential parent.
{¶48} Accordingly, appellant‘s first assignment of error is overruled.
Best Interest of the Child
{¶49} In his second assignment of error, appellant argues that the trial court‘s finding that an award of permanent custody to CCDCFS was in the best interests of M.S. and J.S. was not supported by clear and convincing evidence and was against the manifest weight of the evidence.
{¶50} Where, as here, clear and convincing evidence is required, 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). “Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence.” In re S.D., 8th Dist. Cuyahoga Nos. 99410, 99411, and 99412, 2013-Ohio-3535, ¶ 13, citing In re B.M., 8th Dist. Cuyahoga No. 96214, 2011-Ohio-5176, ¶ 32.
{¶51} Although the trial court found otherwise,12 the record reflects that
{¶52} Although a trial court is required to consider each relevant factor under
{¶53} In its October 10, 2014 journal entries and findings of fact, the trial court stated that it considered each of the factors listed in
Pursuant to [
R.C. 2151.414 ], the Court finds that the allegations of the motion have been proven by clear and convincing evidence. It is therefore ordered that the motion to modify temporary custody to permanent custody is hereby granted.The court finds that the child is not abandoned or orphaned or has not 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 court further finds that the continued residence of the child in the home will be contrary to her best interest and welfare.
The court finds that CCDCFS has made reasonable efforts to finalize the permanency plan. * * *
Upon considering 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 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; 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.
{¶54} Every parental rights termination case involves the difficult balance between maintaining a biological parent-child relationship and protecting the best interests of a child. The value of having a biological parent who cares for and loves a child and with whom the child wants to be with cannot be underestimated, particularly when there is no one else in the child‘s life who fills that role. Familial bonds are not easily replaced, if ever, and they should not be permanently severed without careful consideration of all of the potential costs.
{¶55} Although “[f]amily unity and blood relationship are vital factors to carefully and fully consider,” we also recognize that the paramount consideration is always the best interest of the child. In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 111, citing In re T.W., 8th Dist. Cuyahoga Nos. 86084, 86109, and 86110, 2005-Ohio-6633, ¶ 15. We appreciate that “[a] child‘s best interests require permanency and a safe and secure environment,” In re E.W., 8th Dist. Cuyahoga Nos. 100473 and 100474, 2014-Ohio-2534, ¶ 29, and that “[t]o protect the child‘s interest,” neither the existence of a biological relationship or a “good relationship” is controlling in and of itself. In re J.B., 2013-Ohio-1706 at ¶ 163, citing In re T.W., 8th Dist. Cuyahoga Nos. 86084, 86109 and 86110, 2005-Ohio-6633, ¶ 15.
{¶56} The first two factors under
{¶57} CCDCFS acknowledges these facts but argues that substantial competent, credible evidence nevertheless supported the trial court‘s award of permanent custody to the agency based on
{¶58} There are without question some serious issues that remain to be addressed in this case before appellant could be reunited with his children. Nevertheless, we cannot say that the present record contains clear and convincing evidence that the “remedy of last resort” — permanent termination of appellant‘s parental rights — is in M.S. and J.S.‘s best interests at this time.
{¶59} The CCDCFS‘s primary concerns in seeking permanent custody center around “continuing domestic violence between the parents,”15 the possibility of physical injury or emotional or psychological harm to the children resulting from the domestic violence and a belief that the parents’ marijuana and/or alcohol use “trigger” incidents of domestic violence. The CCDCFS‘s concerns are certainly justified, but appear to rest more on possibilities than clear and convincing evidence of a likelihood of harm to the
{¶60} Although the record reflects that as of the time of the hearing, appellant had not completed several aspects of the amended case plan, including successfully completing a second domestic violence program and second drug treatment program and receiving consistent mental health counseling for his depression,17 the record also reflects that appellant had taken significant steps toward completing the original case plan and remedying the conditions that caused the children to be removed from the home in the past. As Henderson testified, during the fall of 2012, appellant came very close to reunification with his children. Redcross similarly testified that during the time she was
{¶61} This case is a particularly difficult one. It is clear that appellant is not yet at a place where legal custody of his children could be appropriately awarded to him and the children have been in the temporary custody of CCDCFS for a lengthy period of time. Nevertheless, upon careful consideration of the record, we cannot say, based on the present facts, that the record contains competent, credible, clear and convincing evidence that a legally secure permanent placement cannot be achieved without a grant of permanent custody to the agency or that it is otherwise in the best interest of the M.S. or J.S. to terminate appellant‘s parental rights and grant permanent custody of the children to CCDCFS at this point in time. Accordingly, we conclude that the trial court abused its discretion in determining that termination of appellant‘s parental rights and granting permanent custody to CCDCFS was in the best interest of M.S. and J.S. Appellant‘s second assignment of error is sustained.
{¶62} This case is reversed and remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee the costs herein taxed.
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.
__________________________________________
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS
EILEEN T. GALLAGHER, J., DISSENTING:
{¶63} I respectfully dissent from the majority‘s decision to remand this case to the trial court for further proceedings. The majority suggests that if appellant is given more time to work on his case plan, his behavior might improve such that he may be able to provide the best home for his children. I believe the children need stability now more than a mere possibility that appellant might change.
{¶64} Although the children had only been in temporary custody for one year and five months at the time CCDCFS filed a motion for permanent custody on November 27, 2013, this case dates back to May 25, 2011, when the children were first removed from their parents’ home. The children have been in temporary custody twice and were under CCDCFS supervision for approximately 18 months prior to their second removal.
{¶65} When the social worker assigned to this case was asked whether things could improve if appellant was given more time, she replied: “You always hope there‘ll be change, but the history of this case and the back and forth, I don‘t see any change taking place.” Another social worker testified:
These kids need stable caregivers. Their parents love them very much, but my feeling is that they cannot provide appropriately for these children because of their own problems and the problems they have with each other.
{¶66} Both
{¶67} I am also concerned by the fact that M.S. had to repeat a year of school because she missed 58 days of kindergarten during the time appellant had her in his custody. During that time, the social worker left several messages for appellant to make himself available or to call her, and he did nothing. (Tr. 31.) The evidence showed that M.S.‘s school performance was improving while in foster care, but she was continuing to struggle academically. The children need a stable home in which to heal and grow.