IN RE: T.H. A Minor Child [Appeal By Mother]
No. 100852
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 3, 2014
2014-Ohio-2985
Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 10913091
BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEY FOR APPELLANT
Bartos & Bartos, L.P.A.
20220 Center Ridge Road, Suite 320
Rocky River, Ohio 44116
ATTORNEY FOR APPELLEE C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mark Adelstein
Assistant County Prosecutor
Cuyahoga County Department of Children
and Family Services
8111 Quincy Avenue, Room 450
Cleveland, Ohio 44104
GUARDIAN AD LITEM FOR CHILD
James H. Schultz
1370 Ontario Street, Suite 1520
Cleveland, Ohio 44113
ATTORNEY FOR L.J.
Rufus Sims
1370 Ontario Street, Suite 330
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶2} On July 20, 2011, CCDCFS requested and received an ex parte telephonic order of custody of T.H. The basis for the request was that L.J., the legal guardian of T.H., L.H.,2 and appellant, who was a minor at the time, was charged with child endangering where the children were alleged to be the victims. When T.H. and appellant were removed from the L.J.‘s home, it was CCDCFS‘s policy that T.H. and appellant not be placed in the same foster placement. Therefore, T.H. and L.H. were placed in foster care together, while appellant was placed in a different foster home.
{¶3} The day after removal of the children, CCDCFS filed a complaint alleging dependency and requested a disposition of temporary custody of all the children, including T.H. Predispositional temporary custody was granted to CCDCFS two days later. On December 7, 2010, the trial court conducted an adjudicatory hearing on CCDCFS‘s amended complaint. Appellant and L.J. subsequently entered into an
{¶4} On July 10, 2012, CCDCFS filed a motion to modify temporary custody to permanent custody pursuant to
I. Standard of Review
{¶5} When reviewing a trial court‘s judgment in child custody cases, the appropriate standard of review is whether the trial court abused its discretion, which implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Miller v. Miller, 37 Ohio St.3d 71, 73, 523 N.E.2d 846 (1988). An appellate court must adhere to “‘every reasonable presumption in favor of the lower court‘s judgment and finding of facts.‘” In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994), quoting Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 638 N.E.2d 533 (1994).
{¶6} Where clear and convincing proof is required at trial, a reviewing court will
{¶7} “Clear and convincing evidence is more than a mere preponderance of the evidence; it is evidence sufficient to cause a trier of fact to develop a firm belief or conviction as to the facts sought to be established.” T.S. at ¶ 24, citing In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).
{¶8}
R.C. 2151.414(B)(1)(a) and (d) — Second Prong
{¶9} In her first assignment of error, appellant contends that the trial court erred in granting CCDCFS permanent custody of T.H. because the requirement of
{¶10} The trial court determined that the second prong of
{¶11} T.H. was placed in emergency temporary custody of CCDCFS on July 20, 2010. Pursuant to
{¶12} Appellant contends that because the separation at the time of removal was based on CCDCFS‘s policy that she and T.H. not be placed together in foster care and that she was subsequently placed in the same foster home with T.H., the placement should not be characterized as “temporary custody“; rather it was “protective supervision.”
{¶14} We agree that appellant should not be penalized for this involuntary separation from her child, especially when the allegations that caused appellant and T.H. to be removed from their legal guardian were not attributable to any abuse or neglect at the hands of appellant. Furthermore, while we question CCDCFS‘s seemingly blanket policy of separating a parent and child in these instances, the testimony revealed that separation was reasonable.
{¶15} According to social worker Cynthia Hurry, appellant and T.H. were also separated because there was no bond or any real attachment between them. At the time of removal, T.H. was detached and developmentally delayed, a concern to the agency that appellant was not appropriately caring for him. The separation occurred not only because of CCDCFS policy, but because of these other reasons as well.
{¶16} Moreover, even if appellant and T.H. were initially placed together at the time of removal, it would not change the fact that T.H. has been in the temporary custody of a public services agency for 12 or more months of a consecutive 22-month period.
{¶17} The trial court alternatively found that even if the child had not been in the temporary custody of a public services agency for 12 or more months of a consecutive 22-month period, T.H. could not be placed with either of his parents within a reasonable period of time or should not be placed with his parents. See
{¶18} Because we have held that the juvenile court properly found that T.H. was in the temporary custody of CCDCFS for at least 12 months pursuant to
{¶19} Appellant‘s first assignment of error is overruled.
III. R.C. 2151.414(B)(1) — First Prong, Best Interest
{¶20} In her second assignment of error, appellant contends that the trial court
{¶21} Under the first prong of
{¶22}
{¶23} “There 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. This court has stated that only one of these enumerated factors needs to be resolved in favor of the award of permanent custody. In re Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing, In re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993).
{¶25} Elizabeth Zolla (“Zolla“), a social worker with Twelve of Ohio, testified regarding the interaction between T.H. and his foster parent. She stated that T.H. enjoys his foster parent‘s encouragement, especially when she “brags on him” about new skills that he is accomplishing. It was explained that when T.H. was initially placed with his foster parent, he was very detached, was afraid of being touched, and would not speak or look at anyone; now, he interacts with others, greets people, and is described as “lovable.”
{¶26} T.H.‘s foster parent testified regarding how T.H. responded after appellant left the residence in 2013.
He didn‘t respond no way or no how. It hasn‘t really affected him. I know that he knows she‘s gone because when she comes to see him, hi, mom. But when she leaves, it‘s not like he cries a period of time or he goes and slump[s] in the corner. He goes on, you know. He knows that‘s mom, but because they never really had an affectionate bond, it really doesn‘t affect him.
(Tr. 282.)
{¶27} Regarding T.H. and appellant‘s interaction, T.H.‘s foster parent testified that appellant regularly visits with T.H. and, while T.H. addresses appellant as “mom,” there is no hugging. Furthermore, appellant and T.H.‘s visits were initially unsupervised in the home, however, after it was noticed that T.H. was starting to withdraw himself, the visits became supervised.
{¶29} While the testimony demonstrates that appellant has made some improvements in bonding with and attending to T.H., she still needs prompting about his care and parenting. As explained by Zolla, appellant does not have “an issue with application of caring for [T.H.], but [with] the intuition to act without being prompted at times” that appellant lacks in parenting T.H. (Tr. 224.)
{¶30} T.H.‘s foster parent testified that her children have bonded with both T.H. and L.H., and they are part of the family. They go on all vacations, gatherings, holidays together. “They‘re my family like they‘re mine. * * * He‘s just like he‘s mine, like he‘s ours, that he‘s been around and everybody embraces him like they should.” (Tr. 283-284.)
{¶31} While T.H. was too young to express his wishes, his guardian ad litem expressed to the court that T.H. should remain with his foster parent, but that appellant be given more time to work on her case plan. The trial court found that the guardian‘s report and recommendation inappropriately considered the effect of permanent custody on the appellant, in violation of
{¶32} Regarding custodial history, T.H. was removed from his legal guardian when he was three years old after an allegation of child endangering was filed. As a result, he was placed with his current foster placement in July 2010. T.H. has been in this same placement since that time — almost four years. During his placement, he has made substantial improvements, especially in his ability to communicate. The testimony reveals that T.H. has made a “total turn around” since being placed in foster care.
{¶33} It is clear that T.H. has a need for a legally secure permanent placement; however, based on the record before this court, this type of placement cannot be achieved without a grant of permanent custody to the agency. T.H.‘s foster parent is willing to adopt both T.H. and L.H. Alternative options for T.H. that were before the trial court were not options that would achieve a secure stable placement. Moreover, T.H.‘s foster parent testified that appellant is welcome in her home, would never be prevented from coming into her home, and she will continue to facilitate a relationship between the two, “if [appellant] wants it.” This statement is supported by the evidence presented.
{¶34} Upon our review of the record, we find that the trial court weighed all relevant factors and made a decision in the best interest of T.H. This court finds competent and credible evidence in the record supporting the trial court‘s decision. Appellant‘s second assignment of error is overruled.
IV. Exercise Reasonable Efforts for Reunification
{¶36} CCDCFS moved for permanent custody of T.H. pursuant to
{¶37} Accordingly, appellant‘s third assignment of error is overruled.
{¶38} 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 be sent to said court to carry this judgment into execution.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR