In re N.S.
JUDGMENT: AFFIRMED
Appearances:
Matthew O. Williams, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Appellant O.S. (“mother“) appeals from a judgment of the juvenile court granting permanent custody of her children N.S. and T.S. to the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “agency“). Our review reflects that the juvenile court properly engaged in the two-prong analysis
Background
{¶ 2} On January 19, 2020, mother and N.S. (“father“) engaged in a physical altercation in the family home in the presence of their children. Father was subsequently convicted of domestic violence and attempted felonious assault on June 16, 2020, for the incident and received community control sanctions. The court ordered father to have no contact with mother.
{¶ 3} Despite the no-contact order, however, mother allowed father access to the home. On June 19, 2020, CCDCFS filed a “Complaint for Abuse, Neglect and Temporary Custody to CCDCFS” regarding mother and father‘s four children: two girls, born in 2010 and 2011, respectively, and two boys, N.S. and T.S., born in 2014 and 2016, respectively.1 The children were removed from the home that day, pursuant to an ex parte telephone order.
{¶ 4} The complaint, subsequently revised, alleged that “mother and father have engaged in domestic violence when the children were in the home” and mother allowed father access to the home and to the children as recently as June 16, 2020, in violation of the no-contact order imposed as a result of father‘s domestic-violence conviction.
{¶ 6} On September 29, 2020, a magistrate held an adjudicatory hearing on the agency‘s complaint. Kawana Johnson, the social worker on the case, testified at the hearing. Mother stipulated to the allegations of the complaint as amended, and the court adjudicated N.S. and T.S. as abused and neglected.
{¶ 7} After the adjudication, the parties agreed to proceed immediately to disposition and the court granted the agency‘s motion to incorporate the testimony from the adjudicatory hearing into the dispositional hearing. The next day, the magistrate issued a decision and findings of fact, granting temporary custody to CCDCFS. Mother was found to be engaged in parenting education, substance abuse treatment, and domestic-violence counseling; father, however, needed to complete his domestic-violence counseling and anger-management program, and he was inconsistent with his visits with the children. N.S. was being assessed for speech delay, and T.S. for special needs. On October 19, 2020, the trial court issued a judgment entry adopting the magistrate‘s decision.
{¶ 8} On June 3, 2021, the trial court granted the agency‘s motion for an extension of temporary custody, after finding a lack of significant progress made by either parent on their case plan. On June 25. 2021, the agency moved to modify temporary custody to permanent custody.
{¶ 9} On March 16, 2022, the trial court held a hearing on the permanent-custody matter. Testifying for CCDCFS were Vanessa Cunningham, a resource specialist with the Friendly Inn Settlement, where mother‘s and father‘s visitations with the children took place; Kaitlyn Shipe, who provided services for the children regarding their foster care; and Shamara Leonard, the agency‘s social worker on the case.
{¶ 10} The testimony reflects that the children were removed from the home on June 19, 2020, due to severe domestic violence and the unsafe living condition of the home. Following the children‘s removal, a case plan was developed for mother to address issues of parenting, substance abuse, mental health, domestic violence, and housing.
{¶ 11} Mother completed the substance-abuse program and consistently submitted to urine screens, but she appeared to have relapsed on March 3, 2022. On that day, she behaved erratically, calling Leonard ten times after work hours. Mother was crying and screaming and falsely claimed that her children were “in danger.” Leonard asked her to submit to alcohol testing, but mother failed to do so.
{¶ 12} Regarding mother‘s parenting, Cunningham, who knew the family when they previously stayed at Zelma George Shelter, testified that mother would get up early in the morning and prepare the bottles for the two boys before she headed to work. The children were happy with mother. Cunningham considered her a “good mother,” based on her observation at the family shelter. She was
{¶ 13} Leonard testified that mother would bring snacks, food, and birthday gifts to the visitations. She would play with N.S. and T.S. on the floor or color with them. Leonard, however, testified that mother struggled with parenting N.S. and T.S. When the visitations began, N.S., age five at the time, was still not potty-trained. When mother asked him to use the bathroom, he would start running around and throwing objects, but he would comply if asked by his eldest sister. The younger boy, T.S., would throw objects, pull hair, and scratch when he was upset. On multiple occasions, T.S. pulled mother‘s hair and scratched her when she put him in the van at the end of the visitations and persisted despite being asked to stop the behavior. Mother failed to engage in the parenting service initially but eventually completed it in September 2021, although she still had difficulties with N.S. during the visits.
{¶ 14} Regarding mental health, mother was initially referred to Recovery Resources but never attended the program. She was later referred to the Jewish Family Association and completed the program there in July 2021. She was then referred to the juvenile-court clinic for a mental-health assessment and found to have severe post-traumatic stress disorder (“PTSD“). The clinic indicated she could benefit from a mental-health provider specializing in domestic violence. She failed to engage in the recommended counseling.
{¶ 16} Regarding father, he was observed by the staff at the family shelter to be verbally abusive to mother. He would also “holler” at the boys after mother left for work. Although the shelter‘s staff did not observe bruises on mother, she had admitted that father was physically abusive to her.
{¶ 17} Father had visitations with the children initially at the Friendly Inn Settlement, but he was banned from the facility just one month later after an incident where he was verbally abusive toward a staff member and threatened to physically assault her. The agency had to change the venue of the visitations to Fatima Center. Cunningham testified that, during the visitations, N.S. and T.S. would not want to stay in the same room with father. T.S. would urinate and act out. While father interacted well with his daughters, N.S. and T.S. did not want to interact with him at all.
{¶ 18} Father was convicted of domestic violence and attempted felonious assault for the domestic-violence incident in January 2020, which ultimately led to the children‘s removal from the home. The testimony at the hearing revealed that
{¶ 19} Both mother and father minimized domestic violence in the family. In the January 2020 incident, the police arrived in the home to find mother unconscious. When Leonard asked father about the incident, father claimed mother was cooking in the kitchen and hit her head and fell, and mother agreed with father‘s version of the event.
{¶ 20} Leonard testified that both of the couple‘s daughters had been diagnosed with PTSD. The younger girl‘s doctor noted that she suffered severe PTSD from “constantly witnessing domestic violence.” Mother, however, denied the girls ever witnessed any domestic violence.
{¶ 21} Despite the no-contact court order as part of father‘s community control sanctions, the social worker believed mother remained with father. On one occasion when Leonard visited the home, the social worker saw father‘s belongings in a closet and mother stated that “when we get the kids back, we plan to move to Florida.”
{¶ 22} Regarding N.S. and T.S., Shipe testified that both were yet to be potty-trained when the agency took custody of them. They were scared to go in the bathroom and would be crying and screaming when asked to do so, but the foster family was able to get them potty-trained. N.S. was diagnosed with autism and received speech, physical, and occupational therapy. Shipe testified that N.S. has developed a close relationship with his foster family and was often seen giving them
{¶ 23} The social worker testified that the agency believes it is in the best interest of the children for the agency to be granted permanent custody, because mother continued to minimize domestic violence in the family while maintaining constant contact with father.
{¶ 24} After the testimony presented by the agency, the children‘s guardian ad litem (“GAL“) made a recommendation for permanent custody. He considered father “dangerous” and noted that multiple family members suffered PTSD as a result of father‘s abuse of mother, yet mother remained in contact with father and had asked the court to lift the no-contact order to enable her to tend to father‘s health issues. The GAL also noted that mother appeared to have relapsed, most likely due to father‘s abusive behaviors. The GAL opined that, despite mother‘s positive relationship with her children, she has no ability to protect them.
{¶ 25} On appeal, mother raises the following two assignments of error for our review:
I. The trial court abused its discretion committing reversible error when it failed to dismiss the CCDCFS‘s complaint having failed to hold a dispositional hearing within the time allowed law.
II. The trial court‘s termination of appellant‘s parental rights is against the manifest weight of the evidence.
Time Limitation for Permanent-Custody Hearing
{¶ 26} Under the first assignment of error, mother argues that the hearing on the agency‘s motion for permanent custody, filed on June 25, 2021, must take place by October 18, 2021, citing
{¶ 27}
{¶ 28} Here, by the parties’ agreement, a separate dispositional hearing was held on September 29, 2020, immediately after the children were adjudicated as
{¶ 29} On appeal, mother does not claim that the September 29, 2020 dispositional hearing was not held timely pursuant to
{¶ 30}
The department of human services or any other public or private agency or any party * * * may at any time file a motion requesting that the court modify or terminate any order of disposition. The court shall hold a hearing upon the motion as if the hearing were the original dispositional hearing and shall give all parties and the guardian ad litem notice of the hearing pursuant to these rules.
{¶ 31} Citing
{¶ 33} Despite the time limitation, however,
{¶ 35} Here, the agency filed the motion for permanent custody on June 25, 2021. The trial court did not hold the hearing until March 16, 2022, past the 180-day deadline. The delay, however, does not require a dismissal of the complaint of this case as mother claims. The record does not indicate that mother ever raised the issue before the trial court, and mother has not demonstrated how the delay prejudiced her rights. Accordingly, we overrule the first assignment of error.
{¶ 36} Under the second assignment of error, mother argues the trial court‘s decision awarding custody to CCDCFS is against the manifest weight of the evidence. Specifically, she maintains that the testimony presented at the permanent-custody hearing reflects that she is a good mother who cares for her children and the trial court‘s decision is only based on domestic violence committed by her husband.
{¶ 37} We begin our analysis with the recognition that, while a parent‘s right to raise a child is an essential and basic civil right, In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), children have the right to “parenting from either natural or adoptive parents which provides support, care, discipline, protection and motivation.” In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996).
{¶ 38} Under Ohio‘s permanent custody statute,
Two-Prong Analysis for Permanent Custody
{¶ 39}
{¶ 40} Under the first prong of the permanent-custody analysis, the juvenile court is to determine if any of the following factors exists: whether the child is abandoned (
{¶ 41} If any of these five factors under
{¶ 42} Here, mother argues the trial court‘s decision granting permanent custody should be reversed because Cunningham‘s testimony reflects that she is a good mother and the presence of domestic violence by father does not support a grant of permanent custody to the agency. It is unclear, however, whether she is challenging the trial court‘s findings under
a. R.C. 2151.414(B)(1)
{¶ 43} Here, under the first prong of the permanent-custody analysis, the trial court found the presence of the
(E) In determining * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: (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. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
* * *
(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[.]
{¶ 44} Regarding (E)(1), while mother completed a parenting program and some mental-health services, we note that “‘[t]he 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., 8th Dist. Cuyahoga Nos. 98566 and 98567, 2013-Ohio-1706, ¶ 139, quoting In re McKenzie, 9th Dist. Wayne No. 95CA0015, 1995 Ohio App. LEXIS 4618, 11 (Oct. 18, 1995).
{¶ 45} Our review of the testimony indicates mother failed to substantially remedy the condition causing the children‘s removal despite the agency‘s assistance. The children were removed due to domestic violence in the home in the presence of
{¶ 46} Regarding (E)(4), while mother has taken some steps to address her mental health and substance abuse, our review of the testimony indicates mother has demonstrated a lack of commitment toward the children by her actions: she failed to submit to alcohol testing since a relapse in March 2022; did not engage in further counseling to address domestic violence in the home; continued to have contact with father despite the no-contact order; and has indicated her desire to stay with father.
{¶ 47} Pursuant to
b. Best Interest of the Child
{¶ 48} Once the juvenile court determines that one of the five factors listed in
{¶ 49} In determining 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 * * *; (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.
{¶ 50} When analyzing the best interest of the child, “[t]here is not one element that is given greater weight than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Furthermore, although family unity and blood relationship are vital factors to be carefully considered, the paramount consideration is the best interest of the child. In re J.B. at ¶ 163.
{¶ 51} Here, the trial found permanent custody to be in the children‘s best interest after its consideration of (a) the interaction and interrelationship with their parents, siblings, relatives, and foster parents, (b) the wishes of the children; (c) the children‘s custodial history, (d) the children‘s need for a legally secure permanent placement, and the report of the GAL. Our review of the record supports the court‘s determination.
{¶ 52} Regarding the (D)(1)(a) factor, although mother interacted positively with the children, such as playing with them during visitations, she had difficulties controlling their behaviors. As this court has recognized, the best interest of the
{¶ 53} Regarding the (D)(1)(b) factor, the children, seven and five at the time of the permanent-custody hearing, were not sufficiently verbal to express their wishes. Where the children are too young to express their wishes, it is proper for the juvenile court to consider the GAL‘s recommendation as part of the (D)(1)(b) analysis. In re M.D., 8th Dist. Cuyahoga Nos. 110957, 110958, and 110959, 2022-Ohio-2672, ¶ 35. Here, the GAL recommended permanent custody based on his concerns about mother‘s ability to provide a safe home for the children.
{¶ 54} Regarding the (D)(1)(c) and (d) factors, the children were removed in June 2020 and remained in the custody of CCDCFS since then. By the time of the trial in March 2022, they have been in the agency‘s custody for over 20 months. The evidence also reflects the children‘s need for a legally secure permanent placement: mother is unable to provide a safe home for the children due to her desire to stay with father despite domestic violence in the home, and no relative placement was available.2
{¶ 55} Our review therefore reflects the evidence before the trial court clearly and convincingly demonstrated that permanent custody to the agency is in the best interest of N.S. and T.S. pursuant to the
{¶ 56} 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.
MICHELLE J. SHEEHAN, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
FRANK DANIEL CELEBREZZE, III, P.J., CONCURS (WITH SEPARATE CONCURRING OPINION ATTACHED)
FRANK DANIEL CELEBREZZE, III, J., CONCURRING:
{¶ 57} I concur with the majority‘s opinion and resolution of this matter. Custody decisions are undoubtedly the most challenging and most important decisions we make as judges. I respectfully write separately to emphasize the gravity of protecting the children, and my hope that Mother will extricate herself from the violence and the abuse.
{¶ 58} As an appellate jurist with more than 20 years of experience, a father, and a grandfather, I am extremely concerned about the domestic violence inflicted against Mother and the fact that such abuse was witnessed by the children in this matter. During my time as a judge, my top priority has been protecting children, women, and those who cannot protect themselves. This is our duty as jurists, and it will continue to be my top priority as long as I am on the bench.
{¶ 59} In the instant matter, Mother has been given ample time to make progress on her case plan, alleviate the concerns that caused the removal of the children from her custody, and demonstrate that she is willing and able to provide a
{¶ 60} In my view, Mother should reflect upon the totality of the horrific circumstances in this case. It is critical that Mother understands and appreciates that she is risking her own safety and well-being by continuing to associate with an individual that has inflicted such abuse on her. When considering the history of this case and the pattern of abuse, I am reminded of a song by The Red Jumpsuit Apparatus — “Face Down.” My greatest hope for Mother is that, like the woman in the song, she has finally reached the point where she has “had enough.” The vicious cycle has gone on for too long, and it is imperative that Mother break the cycle to save herself.