IN RE S.H.
No. 108404
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 5, 2019
2019-Ohio-3575
MICHELLE J. SHEEHAN, J.
Minor Child [Appeal by V.H., Mother]
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 5, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Court Division Case No. AD17902987
Appearances:
Dean Valore, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Rachel Eisenberg, Assistant Prosecuting Attorney, for appellee.
MICHELLE J. SHEEHAN, J.:
{1} Appellant V.H. (“mother“) appeals from a judgment of the juvenile court granting permanent custody of her child S.H. to the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “agency“). After a careful review of the record and applicable law, we affirm the judgment of the juvenile court.
{2} In February 2017, S.H., 14 at the time, was removed from mother‘s home by law enforcement. Three days after the removal, CCDCFS filed a complaint alleging S.H. to be abused due to domestic violence in the home. On June 1, 2017, S.H. was adjudicated abused and neglected. On June 6, 2017, temporary custody was granted to the agency. In its decision granting temporary custody, the trial court noted that mother was refusing to visit the child and disagreed with visits outside the home, and that S.H. did not feel safe in mother‘s home and did not want to return to the home at the time.
{3} On January 22, 2018, the agency filed a motion for permanent custody. On June 26, 2018, the trial court held a hearing on the motion, but denied the motion and continued the agency‘s temporary custody of S.H.
{4} On August 9, 2018, the agency filed a second motion for permanent custody. On February 27, 2019, the court held a hearing on the motion. At the hearing, the court heard testimony from the assigned social worker in this casе, mother, and S.H.‘s guardian ad litem (“GAL“). S.H.‘s counsel also spoke on her behalf.
a. Social Worker‘s Testimony
{5} Alia Neal, the social worker in this case, testified regarding S.H.‘s custodial history and the agency‘s efforts in providing services to mother for purposes of reunification. The agency was first involved in February 2017. S.H., 14 at the time, was removed by the police from the home due to a physical altercation
{6} When the social worker was assigned to the case in April 2017, S.H. revealed to her that her half-brothers raped her when she was 13. S.H. also told her therapist later about the rape during an individual therapy session. S.H. did not want to return to the home because of her brothers. Both of them were currently chargеd with delinquency due to the sexual-assault allegations. One of them still lived in the home at the time of the permanent custody hearing.
{7} The agency‘s case plan included a parenting class for mother, family counseling for mother and S.H., and individual counseling for S.H. Mother completed the parenting class, which addressed parent-teen communication skills, and S.H. regularly attended her counseling sessions.
{8} The agency‘s efforts to provide family counseling, hоwever, were not successful. Initially, the family therapist was to meet with mother and S.H. in S.H.‘s foster home, but the social worker had difficulties scheduling the sessions because of mother‘s work schedule. When S.H. was placed in another foster home, family therapy in the foster home was not an option, and mother indicated she could not go to the therapist‘s office due to her work schedule and her lack of transportation.
{9} The social worker then tried to arrange family therapy in mother‘s home where all family members would attend. However, while that arrangement was being made, S.H. and mother had a verbal altercation in May 2018, and the two
{10} In August 2018, mother and S.H. started speaking with each other again. The social worker tried to refer them to a new family counseling sеrvice. However, because of inadequate paperwork prepared by the social worker, the social worker‘s request was not properly submitted until November 2018. The service provider declined to provide the in-home therapy, explaining mother had not visited the child sufficiently for the in-home therapy to be effective. As a final resort, the social worker contacted S.H.‘s therapist to explore the possibility of family therapy with her, but the therapist considered it a conflict due to S.H.‘s ongoing individual therapy with the therapist. Consequently, the family counseling prescribed in the case plan never took place over the course of this custody matter.
{11} Regarding visits between S.H. and her mother, after S.H.‘s removal from the home in February 2017, there was one or two visits in March 2017. From April to August 2017, there were only two or three visits because mother had difficulties identifying dates when she could be available. These visits had taken place in the foster home. From November 2017 to January 2018, the foster family arranged for S.H. to have visits in the mother‘s home. However, after a January 2018 visit in mother‘s home, S.H. reported to the social worker that her half-brothers were in the home during the visit and she no longer wanted to have visits in mother‘s home.
{13} The social worker tеstified that S.H. suffers from anxiety, depression, and post-traumatic stress disorder. She had stayed in a Rainbow Babies and Children Hospital‘s psychiatric unit for having suicidal thoughts and was known to cut herself. S.H. changed foster homes multiple times due to her negative behaviors in these homes, such as stealing from the foster home.
{14} The social worker had discussed the custody issue with S.H. Because S.H. and her mother had difficulties positively communicating with each other, S.H. did not want her mоther involved in her life in any way. The social worker discussed PPLA (Planned Permanent Living Arrangement), an alternative to permanent custody, with S.H. S.H. vacillated between the two options but eventually rejected PPLA, because under that arrangement, mother would still be making decisions about her life. The social worker talked to S.H. to ensure that she understood the consequences of permanent custody. Ultimately, S.H. was steadfast about her choice for рermanent custody. In the social worker‘s assessment, S.H., 16 at the
b. Mother‘s Testimony
{15} Mother testified that she has eight children, four of them currently living with her. When S.H. was in her first and second foster homes, they had frequent contact with each other. When she moved to a third foster home, their cоntact became infrequent.
{16} Mother acknowledged that when S.H. was 13, she told her about the sexual assault by her half-brothers, but at that time her sons had already left her house and were living with their father. She however acknowledged that one of them was currently living in her home. Under cross-examination by S.H.‘s counsel about whether she believed S.H. was raped by her brothers, mother responded that she “kinda do, kinda don‘t” because S.H. “has been reaching out to” her hаlf-brothers by sending them text messages.
{17} Mother testified visitation was difficult to arrange because S.H. was “wishy-washy” about visiting with her. Mother stated she was unavailable for out-of-home family therapy because of her work schedule and lack of transportation. She stated she was willing to have S.H. back in the home. When asked about her son facing the rape charge but still living in her home, she responded that she would have him leave the home if she could find a plaсe for him. She acknowledged that
c. GAL‘s Testimony
{18} S.H.‘s GAL filed a report before the permanent custody hearing. The report noted S.H.‘s sister‘s domestic violence charge stemming from an altercation between the two and S.H.‘s half-brothers’ pending rape cases in the juvenile court. The GAL reported that the case-plan objectives were not complete; family counseling failed because of S.H.‘s placement disruptions; mother had made minimal progress on her case-plan objectives; and visitations have been rare. The GAL also reported that S.H. has rejected PPLA because she did not want mother to have any decision-making authority over her. The GAL recommended that, if PPLA was not an option, permanent custody would be in S.H.‘s best interest.
{19} At the hearing, the GAL testified that S.H.‘s behavioral problems worsened since she was in the agency‘s custody, but the agency was not to be faulted. The GAL recounted an incident where S.H. stole a cell phone from a foster family and another incident where she was very disrespectful toward the GAL himself during a telephone conversation. The GAL also noted that S.H. had tried to harm herself on two occasions in December 2018, and once stayed in a psychiatric unit.
{20} Because of the incidents involving her siblings, the GAL did not think it would be appropriate for S.H. to return to the home. He reiterated his recommendation for PPLA, but would recommend permanent custody if PPLA was not an option.
{22} After the hearing, the court issued a judgment entry granting permanent custody of S.H. to the CCDCFS. On appeal, mother raises the following assignment of error for our review:
- The trial court‘s award of permanent custody and termination of the appellant‘s parental rights is against the manifеst weight of the evidence.
Standard of Review
{23} We begin our analysis by recognizing that “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). “The permanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case,” In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14, “All children have the right, if possible, 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).
{24} Under Ohio‘s permanent custody statute,
{25} As for our review, we will not reverse a juvenile court‘s termination of parental rights and award of permanent custody to an agency unless the judgment is not supported by clear and convincing evidence. See, e.g., In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48; and In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24.
Two-Part Analysis for Permanent Custody
{26}
{27} Under the first prong of permanent-custody analysis, the juvenile court is to determine if any of the following factors exists: whether the child has beеn in the temporary custody of public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period (
{28} Here, under the first prong of the permanent-custody analysis, the court found two of these five factors present. First, the trial court noted S.H. has been in the temporary custody of the agency (since June 6, 2017) for 12 or more months of a consecutive 22-month period (
{29} Second, the court also found that S.H. cannot be placed with mother within a reasonable time or should not be placed with mother (
{30} Although the trial court only needs to make one finding to support its determination that S.H. cannot be placed with mother within a reasonable time or should not be plaсed with mother, the court here found four of the enumerated factors present in this case. First, the court found mother failed continuously and repeatedly to substantially remedy the conditions that had caused the removal of S.H. notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents (
{31} Second, the court found mother was unwilling to provide food, clothing, shelter, and other necessities for S.H. as evidenced by the unwillingness to successfully complete a case plan so she can properly provide for the child
{32} Our review of the record indicates the trial court‘s findings are supported by clear and convincing evidence. In its efforts to facilitate unification, the agency presсribed a parenting class to address the parent-child communication issues and family counseling. Although mother completed the parenting class, it did not appear to benefit her, because the communication between her and S.H. actually deteriorated in the course of this permanent custody matter. Although mother is to be commended for completing the parenting class, we note that “[t]he issue is not whether the parent has substantiаlly complied with the case plan, but whether the parent has substantially remedied the conditions that caused the child‘s removal.” (Emphasis sic.) In re McKenzie, 9th Dist. Wayne No. 95CA0015, 1995 Ohio App. LEXIS 4618, 11 (Oct. 18, 1995).
{33} The agency also prescribed family counseling. However, the agency‘s efforts to provide the counseling were hampered by mother‘s work schedule and her inability to provide transportation for the service, the acrimonious relationship between mother and S.H. and their inability to communicate with each other, and
{34} While the logistical difficulties for mother to be available for the family counseling in locations outside her home is understandable given her work schedule and a lack of transportation options, the social worker testified mоther never contacted her on her own or made herself available for the counseling service. Mother appeared to be available only if the counseling would be provided in her home, which indeed reflects a lack of commitment on her part, as noted by the trial court. In addition, visitations between mother and child became sporadic and then nonexistent because mother was unable to improve the antagonistic relationship between them.
{35} More importantly, one of the half-brothers charged with raping S.H. continued to reside in the home. Although the rape cases have not been adjudicated, mother did not know how she would accommodate both S.H. and her son should S.H. return to the home.
{36} Based on our review, therefore, there is clear and convincing evidence on the record warranting the findings made by the trial court that S.H. cannot be placed with mother within a reasonable time or should not be placed with her. The first prong of the permanent-custody analysis is satisfied.
{37} Under the two-prong analysis, once the court determines that one of the four factors listed in
- 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.1
{38} 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, only one of these enumerated factors needs to be resolved in favor of the award of permanent custody. In re S.C., 8th Dist. Cuyahoga No. 102350, 2015-Ohio-2410, ¶ 30.
{39} As to the second part of the permanent-custody analysis, the trial court here noted that it has considered the statutory factors enumerаted in
{40} The record reflects clear and convincing evidence supporting the trial court‘s dеtermination that permanent custody is in S.H.‘s best interest. Regarding her interaction and interrelationship with her family (
{41} Regarding S.H.‘s wishes (
{42} As to the child‘s custodial history (
{43} Therefore, our review of the record reflects clear and convincing evidence in support of thе trial court‘s finding that permanent custody is in the best interest of the child. We recognize the paramount right of parents to raise their children, In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); however, the parents’ rights are not absolute. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, at ¶ 40. “The constitutional right to raise one‘s children does not include a right to abuse, exploit, or neglect them, nor is there a right to permit others to do so.” Id.
{44} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this аppeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR