In re R.D.W.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 9, 2021
Civil Aрpeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19-907047, AD-19-907048, AD-19-907049 and AD-19-907050
Appearances:
Valore & Gordillo L.L.P. and Matthew O. Williams, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.
EILEEN A. GALLAGHER, P.J.:
{¶ 1} This appeal is from a permanent custody determination made by the Juvenile Division of the Cuyahoga County Court of Common Pleas, which awarded permanent сustody to the Cuyahoga County Division of Children and Family Services (“Agency“). A.W. (“Mother“) appeals that court‘s decision and assigns two
I. Factual Background and Procedural History
A. Agency Complaints and Case Plan for the Parents
{¶ 2} Mother gave birth to four boys: R.D.W., Jo.W., Ja.W. and R.G. R.D.W.‘s father is R.G. Sr. (“Father“) who is also the alleged father of the two youngest boys: Ja.W. аnd R.G. but he has yet to establish paternity for those two children.
{¶ 3} J.W. is the father of Jo.W. J.W. has not participated in the actions below.
{¶ 4} When Mother was giving birth to her youngest son,1 she tested positive for cocaine and marijuana.
{¶ 5} Because of the positive drug test, on June 5, 2019, the Agency filed four complaints for abuse and neglect related to each of the children. R.D.W. in Case No. AD-19-907047; Jo.W. in Case No. AD-19-907050; Ja.W. in Case No. AD-19-907049; and R.G. in Case No. AD-19-907048. Along with the complaints, the Agency mоved for temporary custody.
{¶ 6} At the time the Agency filed the complaints, Father had legal custody of R.D.W. in connection with a previous juvenile complaint2 because mother could
{¶ 7} The motion for temporary custody came for a hearing on June 6, 2019. Neither Mother nor Father appeared. The magistrate awarded emergency temporary custody to the Agency following the hearing.
{¶ 8} On August 8, 2019, Mother moved the court to grant temporary custody to Paris Cole, a family friend. On August 14, 2019, Mother and Father stipulated to the allegations of an amended complaint. Based on the stipulations, the magistrate adjudicated the children as neglected and the Agency developed a case plan.
{¶ 9} Initially, the children were рlaced with a maternal cousin. However, due to parental conflicts, the children were ultimately placed with Paris Cole, the family friend mentioned above.
{¶ 10} The case plan for Mother provided that she complete a parenting program as well as a drug and alcohol assessment and then attend, participate and successfully cоmplete any recommended treatment.
{¶ 12} Mother completed a parenting program through Beech Brook on February 4, 2020. Father also сompleted a parenting program and then filed a motion for legal custody of R.D.W., Ja.W. and R.G. asserting that, because he had completed his parenting referral, he had substantially complied with the requirements of the case plan. Father never completed the drug or alcohol assessment let alone any treatment and has yet to establish paternity for the two youngest children.
{¶ 13} On February 18, 2020, the Agency moved the court to modify temporary custody to permanent custody. The affidavit attached to the motion avers that Mother completed a substance abuse assessment and was recommended to complete an intensive outpatient program. However, Mother failed to complеte treatment. She subsequently was referred for another substance abuse assessment but failed to complete that treatment program, as well.
{¶ 14} The Agency, due to unruly behavior of the parents at visits which occurred in the presence of the children, amended the case plan and suspended visitation until each parent completed an anger management course.
{¶ 15} On March 1, 2021, Mother moved that the court award legal custody to Yvonne McCoy, a family friend.
{¶ 16} On June 14, 2021, the matter came for a dispositional hearing before the magistrate at which time Mother‘s motion for a continuance was denied. The magistrate proceeded to hear testimony and found, by clear and convincing evidence, that the children could not be placed with either Mother or Father.
{¶ 17} At the hearing, the Agency produced two witnesses.
{¶ 18} Jasmine Lynard testified that she was the social worker for the children. She testified that the Agency had temporary custody of the children since June 2019. She testified that Mother completed the parenting and anger management referrals but, other than assessments, Mother did not successfully complete any of the substance abuse treatment programs to which she was referred.
{¶ 19} For substance abuse, the Agency referred Mother to New Visions, Women‘s Recovery, Hitchcock House and Community Assessment and Treatment Services (“CATS“). Mother entered the intensive outpatient program at New Visions but “stopped going” and did not complete treatment. Womеn‘s Recovery likewise assessed Mother for an intensive outpatient program, and Mother stopped going without successfully completing that program. Mother then entered the inpatient program at Hitchcock House but voluntarily left before completing that program. Finally, Mother left the intensive inpatient treatment program at CATS just before the dispositional hearing.
{¶ 21} After Lynard‘s testimony, the Agency called Dr. Sheila Ferguson to testify. Dr. Ferguson is the director of community-based services at the Fatima Center, which is operated by the Catholic Charities Corporation of Cleveland. This is the location where the Agency scheduled many of the parental visits with the children. Dr. Ferguson testified that Father and Mother clearly loved their children and that the family “always had a great time together.” She also testified that Father was occasionally “abusive with Mom in terms of name calling and blaming her as the reason the kids were in care” and that these disparaging comments were made in front of the children. She also testified, however, that Mother and Father acted appropriately when they were interacting with the children.
{¶ 22} The magistrate found that Mother had a chemical dependency that is so severe that it makes her unable to provide an adequate permanent home for the children and that Father similarly suffers from a chemical dependency. Furthermore, while Mother began or completed some services, she did not complete an intensive outpatient or inpatient treatment program despite numerous referrals. Father only completed the referral for parenting and nothing else. Neither Mother nor Father reliably provided urine screens to the Agency. Accordingly, the magistrate granted the Agency‘s motion for permanent custody. The trial court
II. Standard of Review
{¶ 23} When proceeding via motion for permanent custody “the trial court must find by clear and cоnvincing evidence: (1) the existence of any one of the conditions set forth in
[T]he juvenile court may “[c]ommit the child to the permanent custody of a public children services agency,” if the court determines (1) in accordance with
R.C. 2151.414(E) that the child cannot be placed with оne of the child‘s parents within a reasonable time or should not be placed with either parent and (2) in accordance withR.C. 2151.414(D)(1) that the permanent commitment is in the best interest of the child.
In re L.S., 2021-Ohio-510, 168 N.E.3d 149, ¶ 42 (8th Dist.), quoting
{¶ 24} “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 thе 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
{¶ 25} We review a juvenile court‘s determination of a child‘s best interest under
III. Analysis and Argument
{¶ 26} Mother appeals from the determination of the trial court granting the Agency‘s motion for permanent custody and raises two assignments of error. However, we overrule Mother‘s assignments of error and affirm the judgment of the trial court because the Ohio Revised Code prohibitеd any further extension of the
Assignment of Error No. 1: The trial court‘s award of permanent custody and termination of appellant‘s parental rights is against the manifest weight of the evidence.
{¶ 27} Mother raises two arguments under this assignment of error. She contends that trial court should have determined that granting the Agency‘s motion for permanent custody was not in the best interests of the children because there were other potential custodians and Mother could have regained custody with only “a little more time.”
{¶ 28} Mother first contends that the trial court еrred because she put forward at least eight individuals as potential placements yet not a single investigation took place. The Revised Code requires the trial court to consider the appropriateness of placement with relatives or interested persons identified in a motion for legal custody of the child.
{¶ 29} Mother named Paris Cole and Yvonne McCoy as potential custodians. Paris Cole was identified in a motion for temporary custody. Lynard testified that she had not been able to talk with Yvonnе McCoy and that the previous guardian ad litem (“GAL“) stated that Yvonne McCoy said she was not able to take the children.
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Q. And have you asked [M]other and/or [Father] about possible family placements for these children?
A. Yeah.
Q. And were they ever able to provide you with anything other than that last interested individual?
A. They provided a fеw people. Mom and provided — at one point in time she had mentioned her mom, she mentioned her sister, but the most recent was the interested individual that the children were placed with and then the lady that I played phone tag with earlier this year.
Q. Were any of those family members appropriate or willing to take placement or custody of these children?
A. No.
{¶ 30} In context, the social worker testified that when Mother provided the name of a potential custodian, the Agency then determined whether or not the proposed custodian was appropriate. The social worker testified that some of the individuals, when contacted, stated they could not take custody of the children, some simply nеver responded to the social worker and one had an open case with the Agency concerning her own children.
{¶ 32} Thus, the trial court did not abuse its discretion in determining that the best interests of the children supported placing the children in the permanent custody of the Agency.
{¶ 33} Second, Mother contends that the trial court erred in determining that the children could not be placed with Appellant within a reasonable period of time. Mother argues that she “had completed the mаjority of her case plan objectives * * * all that she needed was a little more time.”
{¶ 34} The Ohio Revised Code prohibits a trial court from continuing a temporary placement of a parent for more than two years.
{¶ 35} Here, the trial court granted the Agency‘s motion for temporary custody on June 6, 2019. The magistrate issued her judgment on June 16, 2021, which is more than two years after the start of the temporary custody and the trial court did not enter its judgment on the docket until July 1, 2021. Thus, the Ohio Revised Code prevented the trial court from allowing any further extensions of the temporary placement of the children.
{¶ 36} Appellant contends that, because of the March 27, 2020 tolling order issued by the Supreme Court of Ohio, the trial court had the authority to extend temporary custody to the Agency to give her more time. This court has rejected the application of the tolling order to the two-year limitation on temporary custody.
{¶ 37} The trial court did not err in determining that the Mother had “a chemical dependency that is so severe that it makes [her] unable to provide an adequate, permanent home for [each child].”
Assignment of Error No. 2: Aрpellant was denied effective assistance of counsel and prejudiced thereby.
{¶ 39} “This court has recognized that the right to effective assistance of trial counsel attaches only to criminal proceedings and to proceedings for the permanent, involuntary termination of parental rights.” In re C.M.C., 8th Dist. Cuyahoga Nos. 109545 and 109546, 2021-Ohio-314, ¶ 28, quoting In re M.I.S., 8th Dist. Cuyahoga No. 98138, 2012-Ohio-5178.
To establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel‘s performance fell below an objective standard of reаsonable representation and (2) that he was prejudiced by that performance. Prejudice is established when the defendant demonstrates a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidencе in the outcome.
Id. at ¶ 29, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 40} Appellant contends that she was prejudiced by her counsel‘s failure to subpoena the proposed custodians to establish a placement for the children with persons other than the Agency. However, the only evidence in the record are the reasons set forth by the social worker that the Agency determined that thesе persons were either inappropriate or not interested in having permanent custody of the children. As noted by the Agency on appeal, no evidence was produced concerning what those witnesses would have said had they been subpoenaed to testify.
{¶ 41} Accordingly, we overrule Mother‘s second assignment of error.
{¶ 42} 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 Cuyahoga County 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and EILEEN T. GALLAGHER, J., CONCUR