IN RE R.A., ET AL.
No. 110541
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 18, 2021
2021-Ohio-4126
ANITA LASTER MAYS, P.J.
Minor Children [Appeal by Mother, C.P.] JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19-913346, AD-19-913347, and AD-19-913348
Wargo Law, L.L.C., and Leslie E. Wargo, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Joseph C. Young and Zachary J. LaFleur, Assistant Prosecuting Attorneys, for appellee.
{1} Appellant, C.P. (“Mother“), appeals from the trial court‘s judgments1 granting the motion of the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the agency“) to modify temporary custody to permanent custody. After a careful review of the record and law, we affirm.
Procedural History
{2} On October 31, 2019, CCDCFS filed a complaint alleging that the subject children, R.A., K.R., and E.R., were abused and neglected and requesting a disposition of temporary custody of the children. On the same date, CCDCFS filed a motion for predispositional temporary custody of the children, which the trial court granted.
{3} An adjudicatory hearing was held on January 23, 2020, at which Mother entered admissions to an amended complaint and all three children were adjudged to be abused and neglected. The parties agreed to move immediately to disposition and the children were committed to the agency‘s temporary custody.
{4} On September 8, 2020, CCDCFS filed a motion to modify temporary custody to permanent custody. On February 26, 2021, trial on the permanent custody motion was held before a magistrate. At the time of the hearing, R.A. was five years old, K.R. was three years old, and E.R. was one year old. On April 15, 2021,
Factual History: Trial Testimony
{5} Two witnesses, CCDCFS social worker Lee Barbee, and a “wraparound services” specialist from the University Settlement Collaboration, Re‘Ana Dixon, testified at trial;2 the children‘s guardian ad litem (“GAL“) also gave her recommendation on the motion for permanent custody. The following facts were adduced.
{6} The children lived with Mother and L.R. (“Father“),3 father of E.R. and alleged father of K.R., in an upstairs/downstairs duplex home in Cleveland. The home was owned by a member of Father‘s family. Mother, Father, the three children, and two of Father‘s brothers lived in the upstairs portion of the home; other members of Father‘s family lived in the downstairs portion of the home. For a period of time leading up to this case, the house was being surveilled by the police because of suspected human trafficking and drug activity believed to be occurring in the upstairs portion of the home.
{8} The agency‘s goal for Mother was reunification with her children and a case plan was developed for her; the plan was to address issues regarding substance abuse, mental health, parenting, basic needs, and housing. Social worker Barbee testified that Mother failed to make significant progress on the plan.
{9} In regard to substance abuse, Mother was referred to services to address her substance abuse concerns twice — first in November 2019 and then again in March 2020; she refused services both times. Mother finally agreed to a drug assessment in August 2020. She was referred to outpatient treatment for alcohol abuse at that time, which she started, but was discharged after less than a month in the program for nonparticipation. Mother did not take another assessment until January 2021, which was more than four months after the agency filed its motion for permanent custody and one month before the permanent custody hearing. Between August 2020 and January 2021, Mother‘s alcoholism worsened, and she was recommended for intensive outpatient treatment. She began attending her outpatient treatments in January 2021, but the service provider
{10} Additionally, Mother generally failed to provide drug screens to the agency as requested. She cited transportation issues as the reason, but Dixon, the wraparound services specialist, testified that her agency had been providing Mother bus tickets for the express purpose of being able to make it to the services she needed to be compliant with her case plan. In March 2020, Mother did comply with the agency‘s request for a drug screen; it was positive for cocaine and marijuana.
{11} The agency also requested Mother to submit to random urine screens, which she refused to do. Mother did, however, provide tests for her substance abuse service provider. The results showed that she had six months of consecutive high testing for alcohol; she never provided a clean screen to her substance abuse service provider. According to social worker Barbee, Mother minimized the results of the screens, denied she had a problem, and maintained that the positive screens were “mistakes.” As of the time of trial, Mother failed to provide a clean screen that would have allowed CCDCFS to establish a sobriety date. Social worker Barbee testified that the agency generally requires six months of sobriety after completion of treatment as a benchmark for reuniting parents with their children.
{12} In regard to mental health services, CCDCFS included that as part of Mother‘s case plan because she had a history of post-traumatic stress disorder and depression; thus, the agency referred Mother to a facility for a mental health assessment. Mother refused to submit to the assessment, stating that she did not
{13} Parenting services were also a part of Mother‘s case plan. The testimony demonstrated that CCDCFS was concerned about Mother‘s decision-making. As mentioned, she allowed the children to be in the presence of a known sex offender. And in regard specifically to R.A., the agency had significant concerns. In particular, when R.A. came into the agency‘s custody he had significant scarring from an untreated throat infection; his condition ultimately required him to have surgery. He also had 12 cavities, did not know how to properly use the restroom, hoarded food, and demonstrated sexualized behaviors, which including him trying to have sex with another child at his daycare. R.A. also made statements that “he owned” children and they were “his property.”
{14} Mother completed two parenting classes. The agency questioned if Mother benefited from the classes, however. Because of R.A‘s. severe throat infection he had to have a tonsillectomy in July 2020. Social worker Barbee testified that the agency was informed that the procedure was generally a 15-minute one, but it took one and a half hours to perform on R.A. because he had such a significant amount of infection and scarring built up in his throat and neck muscles. According to R.A.‘s doctors, a second surgery was a possibility because of the severity of the infection and scarring.
{16} The testimony further demonstrated that R.A. has developmental delays and is believed to be autistic. K.R. is believed to be autistic as well. At the time of trial, both R.A. and K.R. were receiving diagnostic and therapeutic services.
{17} In regard to the case plan goal of addressing housing and basic needs, social worker Barbee testified that Mother failed to complete that portion of the plan. CCDCFS was concerned about the drug activity in the house (which included drugs being out in the open) and the condition of the home at the time of the children were removed. The agency referred Mother to a community collaborative to work with to find new housing, but as of the time of trial, Mother was still living in the same house with Father; Barbee testified that Mother was dependent on Father, because she was not employed.
{19} The children‘s GAL gave an oral report to the court, recommending permanent custody to CCDCFS. She credited Mother for being consistent with visitations with the children, but based her recommendation on the following: “[M]other has no known sobriety date, she‘s not engaged in mental health. She‘s connected to [Father], [has] no source of income, [and is] still living in that same home. [Father] may or may not be employed and he‘s just started services.” Additionally, the GAL informed the court about the progress the children were making with their foster mother.
{20} On this testimony, the magistrate recommended that CCDCFS‘s motion for permanent custody be granted. After conducting an independent review of the matter, the juvenile court affirmed, approved, and adopted the magistrate‘s decision.
Assignments of Error
{21} Mother now raises the following two assignments of error for our review:
The trial court should have extended temporary custody. - The evidence presented to the trial court did not support, by clear and convincing evidence, a finding that permanent custody to CCDCFS was in the best interests of the children.
Law and Analysis
Plain Error Review: Failure to Object to Magistrate‘s Decision
{22} We initially note that Mother did not file objections to the magistrate‘s decision in accordance with
{23} If none of the parties files written objections, a trial court may adopt the “magistrate‘s decision unless it determines that there is an error of law or other defect evident on the face of the magistrate‘s decision.”
{24} Thus, we review Mother‘s claimed errors under a plain-error standard. “Plain error is not favored and is only applicable in rare cases where the error ‘seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.‘” In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, ¶ 12, quoting S.J. v. J.T., 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, ¶ 8.
Extension of Temporary Custody
{25} In her first assignment of error, Mother contends that the trial court “had no justified reason to not extend temporary custody in this case.” Mother contends that there was a two-year period for her to complete her case plan and
{26}
Any temporary custody order issued pursuant to division (A) of this section shall terminate one year after the earlier of the date on which the complaint in the case was filed or the child was first placed into shelter care, except that, upon the filing of a motion pursuant to section 2151.415 of the Revised Code, the temporary custody order shall continue and not terminate until the court issues a dispositional order under that section. In resolving the motion, the court shall not order an existing temporary custody order to continue beyond two years after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, regardless of whether any extensions have been previously ordered pursuant to division (D) of section 2151.415 of the Revised Code.
(Emphasis added.)
{27} Thus, the statutory term for a temporary custody order is one year; the two years only applies if a motion for an extension was filed, which it was not in this case. Even had an extension been filed, the record before us does not indicate that it likely would have been granted.
The court may extend the temporary custody order of the child for a period of up to six months, if it determines at the hearing, by clear and convincing evidence, that the extension is in the best interest of the child, there has been significant progress on the case plan of the child, and there is reasonable cause to believe that the child will be reunified with one of the parents or otherwise permanently placed within the period of extension. In determining whether to extend the temporary custody of the child pursuant to this division, the court shall comply with section 2151.42 of the Revised Code.
{29} Mother also contends that the children wanted to be with her.
{30} Mother further contends that the trial court was not under a statutory deadline to complete and adjudicate the permanent custody. The trial court was guided by statutory timeframes, however, including
The court shall hold the hearing scheduled pursuant to division (A)(1) of this section not later than one hundred twenty days after the agency files the motion for permanent custody, except that, for good cause
shown, the court may continue the hearing for a reasonable period of time beyond the one-hundred-twenty-day deadline. The court shall issue an order that grants, denies, or otherwise disposes of the motion for permanent custody, and journalize the order, not later than two hundred days after the agency files the motion. * * *
The failure of the court to comply with the time periods set forth in division (A)(2) of this section does not affect the authority of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.
{31} Thus, Mother‘s contention that the juvenile court had no time requirement to complete and adjudicate the permanent custody motion is not well taken. The court did have a time framework within which to dispose of the motion.
{32} In light of the above, there was no error, plain or otherwise, in the trial court proceeding on the agency‘s motion for permanent custody when it did. The first assignment of error is overruled.
Permanent Custody under R.C. 2151.414(B)
{33} In her second assignment of error, Mother contends that the trial court erred by determining that an award of permanent custody to CCDCFS was in the children‘s best interest.
{34} A juvenile court applies a two-pronged test when considering a motion for permanent custody. To grant the motion, the juvenile court first must find that any of the factors in
{35} “An appellate court will not reverse a juvenile court‘s termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence.” In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. “‘Clear and convincing evidence’ is that quantum of evidence that instills in the trier of fact a firm belief or conviction as to the allegations sought to be established.” In re T.S., 8th Dist. Cuyahoga No. 109957, 2021-Ohio-214, ¶ 23, quoting In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13. If the grant of permanent custody is supported by clear and convincing evidence, we will not reverse that judgment. In re J.J., 8th Dist. Cuyahoga No. 108564, 2019-Ohio-4984, ¶ 30.
{36} The Supreme Court of Ohio has explained the manifest weight standard as follows:
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the [factfinder] that the party having the burden of proof will be entitled to their [judgment], if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.‘”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary 1594 (6th Ed.1990).
{38} In light of the above,
[t]he discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s determination will have on the lives of the parties concerned. In re Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-Ohio-4137. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding (i.e., observing their demeanor, gestures and voice inflections and using these observations in weighing the credibility of the proffered testimony) cannot be conveyed to a reviewing court by a printed record. Id., citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).
In re C.T., 8th Dist. Cuyahoga No. 87159, 2006-Ohio-1944, ¶ 15.
{39} With the above-mentioned standard in mind, we now review the two-pronged findings made by the trial court in ruling on CCDCFS‘s motion for permanent custody.
First Prong Under R.C. 2151.414(B)
{40} Under the first prong, the juvenile court must determine by clear and convincing evidence that any of the following apply:
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. - The child is abandoned.
- The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
- 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.
- The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.
{41} Mother concedes that the juvenile court made an appropriate finding under
{42} The juvenile court further found under
{43} When assessing whether a 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 under
{44} In this case, the juvenile court found for each child, pursuant to
[f]ollowing 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.
{45} In regard to R.A., the court found under
The child has ongoing special medical needs, including follow-up mouth and throat care, neurological treatment, developmental delays and possible autism spectrum disorder. The child also has ongoing behavioral and mental health issues, including improper hygiene, hyper-sexual tendencies, inappropriate language and irregular food habits. [Mother] has not participated in the treatment of the child despite being permitted to do so and has not demonstrated the ability to meet the child‘s special needs.
{46} Mother does not challenge the above-mentioned findings under the first prong. Our review of the evidence supports the trial court‘s application of
Second Prong under R.C. 2151.414(B): Best Interest Determination
{47} We review a juvenile court‘s determination of a child‘s best interest under
{48} In determining the best interest of a child at a hearing held pursuant to
- 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;
- 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;
- 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;
- Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{50} Here, the juvenile court expressed that it considered the relevant factors set forth under
{51}
{52} Under
{53}
{54}
{55} Under
The child has ongoing special medical needs, including follow-up mouth and throat care, neurological treatment, developmental delays and possible autism spectrum disorder. The child also has ongoing behavioral and mental health issues, including improper hygiene, hyper-sexual tendencies, inappropriate language and irregular food habits. [Mother] has not participated in the treatment of the child despite being permitted to do so and has not demonstrated the ability to meet the child‘s special needs.
{56} The above-mentioned findings were all supported by the testimony presented at trial. Moreover, the court was guided by the recommendation of the GAL, who spoke on behalf of the young children and recommended that it was in the best interests of each child to grant the agency permanent custody. And, as discussed, the testimony elicited at trial demonstrated that Mother has not fully satisfied the objectives of her case plan and has not proven that she can provide a
{57} We recognize that the “termination of the rights of a birth parent is an alternative of last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. The purpose of the termination of parental rights statutes is to make a more stable life for children and to facilitate adoption to foster permanency for children. In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67. This court does not look upon these matters lightly, and this case is certainly no exception. But in light of the above, there was competent credible evidence supporting the juvenile court‘s determination and the court did not abuse its discretion in finding that it was in the children‘s best interest to be placed in the permanent custody of CCDCFS.
{58} The second assignment of error is overruled.
{59} 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.
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and LISA B. FORBES, J., CONCUR