IN RE: M.W., ET AL., Minor Children [Appeal By Mother]
No. 105565
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 16, 2017
2017-Ohio-8580
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 15902651 and AD 15902653
JUDGMENT: AFFIRMED
BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Morgan L. Pirc
Assistant Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Anthony R. Beery
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144
For D.D., Father
Troy M. Hough
21887 Lorain Road, #306
Cleveland, Ohio 44126
Also listed:
Guardian ad litem for Children
Richard D. Summers
McDonald Hopkins Co., L.P.A.
600 Superior Avenue, E., Suite 2100
Cleveland, Ohio 44114
Guardian ad litem for Mother
Susan K. Jankite
1253 Arlington Road
SEAN C. GALLAGHER, J.:
{1} Appellant mother (“Mother“) appeals from the orders awarding permanent custody of her two children, M.W. and D.D., to the Cuyahoga County Division of
{2} On February 26, 2015, CCDCFS filed a complaint alleging M.W. and D.D. to be neglected and dependent children. Along with the complaint, CCDCFS filed a motion for predispositional temporary custody, which was granted by the court magistrate. The children were placed in the emergency custody of CCDCFS on March 10, 2015.
{3} A case plan was developed for Mother and the alleged father. The alleged father did not engage in any services or visit with the children during the pendency of the case. The case plan for Mother included parenting classes, domestic violence services, mental health services, and meeting the special needs of the children. The permanency plan was reunification.
{4} An adjudicatory hearing was held on June 23, 2015. The parents stipulated to an amended complaint, and the magistrate adjudicated the children as dependent. The magistrate‘s decision was adopted by the trial court.
{5} Among the allegations stipulated to in the amended complaint were that M.W. was previously adjudicated neglected and dependent because of concerns of domestic violence between Mother and the children‘s alleged father, that there was a need to ensure that the children receive services to address their developmental delays, and that Mother requires mental health treatment.
{6} The children were committed to the temporary custody of CCDCFS. On March 1, 2016, the trial court granted a motion for first extension of temporary custody. On June 16, 2016, CCDCFS filed a motion to modify temporary custody to permanent custody. The CCDCFS social worker involved in the case testified that there was still hope that “mom can turn things around * * * and that we can be able to take our motion off the table. It just wasn‘t able to happen in this case.”
{7} The trial court conducted a hearing on January 24 and 25, 2017. There was no dispute that the children had been in the custody of CCDCFS for 12 or more months of a consecutive 22-month period.
{8} There was evidence that Mother engaged in case plan services. She completed two parenting classes, engaged in domestic violence services, and engaged in mental health services. However, at the time of the hearing, there was uncertainty as to whether Mother had benefitted from these services.
{9} There was evidence of a history of domestic violence in the home between Mother and the alleged father of the children, with the alleged father being the aggressor. After Mother‘s completion of a first domestic violence class, an incident occurred involving Mother and the alleged father, with Mother‘s oldest child, who is not involved in this case, present in the home. Mother was still actively engaged in domestic violence services at the time of the permanent custody hearing. There was evidence that Mother has maintained a relationship with the alleged father, who is in prison and due to be released in 2018.
{10} There was testimony concerning the developmental delays and special needs of the children. Both children receive mental health services and occupational therapy, and M.W. also receives speech therapy and physical therapy. The foster mother testified that she takes the children to appointments three to four days a week. The record reflects that the children had bonded with their foster mother. Although the foster mother did not plan to adopt the children, she was ensuring that their special needs were being met. She stated that she expressed to
{11} There was major concern with Mother‘s level of involvement with the special needs of the children. Despite the recommendation of the social worker and efforts of the foster mother to involve Mother in the children‘s therapies and appointments, Mother attended only one appointment in two years and was late to that appointment.
{12} The doctor who performed a psychological evaluation of Mother identified concerns for Mother‘s parenting style, her lack of insight into why she is involved with CCDCFS, and her history of being in a relationship that involved domestic violence.
{13} There was testimony that Mother received mental health services at Murtis Taylor, but she was inconsistent in her engagement with these services. There was testimony that Mother was noncompliant with taking medication.
{14} There was evidence that Mother had obtained stable housing. Mother‘s visitation with the children had been moved to her home, but the visitation was moved out of the home after the domestic violence incident with the alleged father while her oldest child was in the home. Although certain concerns were expressed with regard to Mother‘s parenting, there was testimony that Mother‘s interaction with the children was appropriate and that the children loved their mother and were bonded with her.
{15} The guardian ad litem for the children made a recommendation for a second extension of temporary custody, though he had recommended permanent custody for the children in his written report. The guardian ad litem indicated Mother had just completed a parenting class and needed time to demonstrate that she had benefitted. Nevertheless, he admitted that Mother‘s failure to attend all but one of the children‘s appointments over a two-year period was a “major concern” and opined that Mother was not ready to reunify with the children. Likewise, the social worker testified that the children had been in the custody of the agency since March 2015 and that she did not believe the mother could be reunified with the children within the next two months.
{16} After considering the testimony presented, the trial court issued a journal entry for each child, journalized February 23, 2017, that terminated all parental rights and awarded permanent custody to CCDCFS. This appeal followed.
{17} Mother raises one assignment of error for our review, which challenges the trial court‘s decision to award permanent custody of the children to CCDCFS. Mother claims the trial court‘s decision is contrary to the evidence presented.
{18}
{19} There is no dispute that the condition under
{20} If any of the conditions outlined in
{21} In determining the best interest of a child,
{22} Here, the trial court considered the evidence presented. Notwithstanding the recommendation of the guardian ad litem, upon considering all the relevant factors pursuant to
{23} The court found that father had neglected the children by failing to regularly visit, communicate with, or support the children; and that his repeated incarceration prevented him from providing care for the children. The court considered Mother‘s engagement in case plan services, but believed she had failed to benefit from them. The court recognized that Mother had been noncompliant in taking medication as prescribed and that she had failed to consistently attend her counseling. The court also found that “mother has not made reasonable efforts to acquire the needed knowledge to address the [children‘s] needs” as evidenced by “her failure to attend the speech, hearing and physical therapy sessions that the [children] participated in.” Further, the court found that Mother had “demonstrated a lack of commitment towards the [children] by failing to end the relationship with the alleged father where she is the victim of [d]omestic [v]iolence.” Although Mother takes issue with the findings of the trial court as being “(1) overstated, (2) wrong or outweighed by alternative factors and concerns,” our review reflects that the trial court appropriately considered the relevant factors in determining the best interest of the children and that its findings are largely supported by competent, credible evidence in the record.
{24} Furthermore, the trial court acted within its discretion in choosing not to follow the oral recommendation of the guardian ad litem, who advocated for a second extension of temporary custody. A trial court is not bound to follow a guardian ad litem‘s recommendation. “Although
{25} Although the foster mother was not prepared to adopt the children, the Supreme Court of Ohio has recognized that “the current statutory framework does not expressly require the court to consider [the child‘s probability of being adopted] in making a best-interest determination,
{26} We reiterate that it is the best interest of a child that is the pivotal factor in a permanency case, and that neglected and/or dependent children are entitled to a stable, secure, nurturing, and permanent home in the near term. In re N.B., 8th Dist. Cuyahoga No. 105028, 2017-Ohio-1376, ¶ 30. Our review of the record shows that the trial court‘s determination as to each child is supported by clear and convincing evidence and is not against the manifest weight of the evidence in the record. We overrule the assignment of error and affirm the trial court‘s decisions awarding permanent custody of each child to CCDCFS and terminating Mother‘s parental rights.
{27} 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, 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.
SEAN C. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE DISSENTING OPINION
MELODY J. STEWART, J., DISSENTING:
{28} I respectfully dissent from the majority decision in this case. The trial court abused its discretion by terminating Mother‘s parental rights. The evidence does not support a finding that the termination of Mother‘s parental rights would be in the best interest of the children under the circumstances of this case.
{29} As the majority notes,
{30} In this case, Mother engaged in the case plan services and mental health services, she has stable housing, is appropriate with her children, and her children love her and are bonded with her. The primary concerns about Mother maintaining her parental rights center around domestic violence issues with the alleged father and Mother‘s lack of attendance to her children‘s mental health, occupational therapy, physical therapy, and speech therapy appointments.
{31} The alleged father is incarcerated, and at the time of the permanent custody hearing, Mother was still actively engaged in domestic violence services. Furthermore, although the lack of initiative in routinely attending her children‘s appointments could, admittedly, be seen as demonstrating a lack of commitment to her children, there was no evidence that attending these appointments was required of Mother or a part of her case plan. The children‘s foster mother is responsible for making sure the children get to their appointments. And, although the foster mother stressed to Mother the importance of keeping up with the appointments, what is not clear is whether Mother understood this expression to mean that it is important to keep up with them now or when/if she gets her children back. To be sure, the evidence shows that Mother was told about the various appointments, but not that her attendance was required. As such, it may not have been clear to Mother that reunification was predicated on her attending the children‘s appointments while the foster mother was still responsible for taking them.
{32} Finally, the most salient reason it appears that terminating Mother‘s parental rights at this time is an abuse of discretion is due to the fact that doing so would not change the children‘s status. The foster mother is not interested in adopting the children and will continue to foster them. This status can be maintained while mother has clear and specific expectations relayed to her on what is required to maintain her parental rights and get her children back. This is not a case where the parent has not made significant strides toward reunification. And because the children will continue to be well cared for in the foster mother‘s home, regardless of whether Mother‘s rights are terminated, extending the opportunity for reunification seems to be in the best interest of the children under the circumstances of this case, while terminating Mother‘s parental rights does not. I would find, therefore, that the trial court abused its discretion.