IN RE: T.P. A Minor Child [Appeal By Mother]
No. 102705
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 10, 2015
2015-Ohio-3679
BEFORE: McCormack, J., Keough, P.J., and E.A. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD14901761
RELEASED AND JOURNALIZED: September 10, 2015
Dale M. Hartman
2195 South Green Road
Cleveland, OH 44121
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Rachel V. Eisenberg
Assistant Prosecuting Attorney
3955 Euclid Avenue
Cleveland, OH 44115
{¶1} Appellant mother (mother hereafter) appeals from the judgment of the juvenile court granting permanent custody of her child T.P. to the Cuyahoga County Division of Child and Family Services (CCDCFS or agency hereafter). After a thorough review of the record and applicable law, we affirm the juvenile court‘s judgment.
Substantive History and Procedural Background
{¶2} Mother has two older children: a girl, J.P., six years old at the time of the permanent custody trial, and a boy, Q.H., two years old. J.P. was adjudicated neglected and placed in the temporary custody of the agency in 2010. After mother completed her case plan, she was reunited with J.P.
{¶3} In June 2013, mother was living with her boyfriend Kevin Price. On June 10, 2013, Q.H. was taken to the emergency room and found to have sustained extensive and serious injuries. Daughter J.P. was also found to have bruising on her body, but the injuries were not as severe.1
{¶4} Price was subsequently convicted of abusing Q.H. and received a five-year prison term for his conviction. Mother herself pleaded guilty to, and was convicted of,
{¶5} Both J.P. and Q.H. were removed from mother. J.P. was placed in the legal custody of her father. Q.H. was in the temporary custody of the CCDCFS, and a motion relating to his permanent custody was pending.
{¶6} Mother was released from jail in October 2013. Four months later, in February 2014, T.P. was born. Price is the father. The agency immediately took emergency custody of the baby. The trial court granted emergency custody to the agency, and T.P. was placed in a foster home, the foster home where his brother Q.H. was also staying. T.P. was subsequently found to be dependent. In May 2014, temporary custody of the child was granted to the agency. A case plan was then provided for mother to address her basic needs, mental health, and any substance abuse issues.
{¶7} In June 2014, the agency filed a motion for permanent custody. Thereafter, mother filed a motion for legal custody. On January 30, 2015, the court held a permanent custody hearing.
Testimony on Behalf of CCDCFS
{¶8} The social worker in this case, Tracy Simpkins-Smith, testified that the oldest child, J.P., was in the agency‘s custody twice. On the first occasion, mother was seen pulling J.P. down the hallway by her hair. Although mother was eventually reunited with her daughter after completing her case plan, the agency regained J.P.‘s custody in the summer of 2013 when both J.P. and her brother Q.H. were found with
{¶9} The social worker testified that, after mother was released from jail in October 2013, she was compliant with her probation. After staying in shelters for some time, she was able to obtain housing and employment, although she changed employment several times.
{¶10} Regarding the progress on mother‘s case plan, the social worker testified that, when attending a domestic violence class, mother was observed to put her head down and talk on her cell phone in class. Because she did not appear to benefit from the domestic violence program, mother was requested by the court to retake the class, although another suitable class was not available.
{¶11} Regarding mother‘s mental health, the social worker testified mother did not adequately address the abuse of her children or her emotional volatility. She continued to downplay her role in the abuse of her children. Individual counseling was provided
{¶12} Regarding substance abuse issues, the social worker testified that although the mother‘s alcohol and marijuana use was noted in J.P.‘s case history, mother would not admit to any substance abuse. She tested positive for cocaine several months before T.P. was born. She has since tested negative.
{¶13} Mother consistently visited with T.P. and Q.H. at an agency building. She played well with them and brought them food, clothes, and toys, but she was not always attentive to them. The social worker also felt mother‘s behavior was not always appropriate. Mother‘s moods were volatile in her interaction with the social worker. In one such visit, she argued with the social worker and turned verbally abusive in front of the children. The social worker had to call security.
{¶14} Most notably, the social worker testified that mother continued to deny any responsibility for the abuse suffered by her six-year-old daughter and two-year-old son. She acknowledged neither abusing her children nor failing to protect them from abuse. She denied seeing any injuries on her son Q.H. before he was taken to the hospital, even though she had just given him a bath and changed his diaper. Despite her prior participation in the case plan services relating to J.P.‘s custody case, she failed to protect her son Q.H. from abuse.
{¶16} J.P.‘s father‘s grandmother, A.D., also testified for the agency. She helped care for J.P. after both J.P. and her brother Q.H. sustained injuries in the summer of 2013 and were consequently removed from their home. A.D. saw whip marks on J.P.‘s thighs, buttock, and back. J.P. told her that her mother whooped her. A.D. continued to care for J.P. when her grandson (J.P.‘s father) was given legal custody of J.P. She testified that although J.P. and her mother have a good relationship, she would not trust mother enough to leave J.P. in unsupervised visits with her because of her mood issues.
{¶17} Mendi Joi Wilson, mother‘s counselor from Corrections, a community health agency, also testified for CCDCFS. Wilson began counseling mother in August 2014 and worked with mother on her coping skills. The counseling was supposed to be twice a month but mother only attended it once a month. Mother was emotionally unstable initially because of the removal of her children. Mother acknowledged she had a conviction for child endangerment but attributed the situation to her being a victim of domestic violence herself. Because mother did not acknowledge her own inappropriate conduct, the issue of her behavior toward her children was never addressed. The counselor did note that mother has become more positive and happier, as she was able to work steadily and to furnish her apartment.
{¶18} Mother presented the testimony from Mary Nichols, an employee at Jordan Community Resources Residential Center, a temporary shelter for women. Nichols considered herself as mother‘s mentor. She testified that mother complied with her case plan in the hope of being reunited with her children. By the time mother moved out of the facility into her own housing in June 2014, she had shown tremendous growth. As to the abuse of her son, Q.H., mother regretted what happened to her children, but felt what happened was beyond her control.
{¶19} Mother herself testified. She was combative and argumentative at times on the witness stand. She testified that, while in the county jail, she participated in the Moms First program and learned to be aware of the power struggle between parents and children and how to deal with it. She denied ever using cocaine, although a December 2013 test showed positive for cocaine. She denied ever abusing her children and continued to insist that she was unaware they were being abused. She testified that on the day Q.H. was taken to the emergency room, she had been at work all day. When she returned home from work, Q.H. was lying down. Her mother stopped by and, noticing that something was very wrong with Q.H., urged her to seek medical attention for Q.H. Mother, however, insisted Q.H. was perfectly fine when she left for work that morning.2 When her mother persisted, mother finally permitted her mother to take Q.H.
that she had allowed her children to witness her boyfriend‘s abusive conduct toward her.
{¶20} The GAL for T.P., who is also the GAL for mother‘s two other children, filed a report and recommended permanent custody. She reported that mother faced the same substance abuse and anger issues in the instant custody matter as she did in the prior custody cases, yet would not take responsibility for her actions. Mother‘s moods fluctuated — calm and cooperative at one meeting but angry and confrontational at next. During a supervised visit before Christmas 2014, mother was so verbally abusive and aggressive toward the social worker that security had to be called. Mother tended to blame everyone else for her situations. She claimed she was unaware Q.H. was being abused, although the injuries should have been visible when she changed his diaper, or when she bathed or dressed him. Although Q.H. appeared to be ill, she did not take Q.H. to the hospital herself. Despite a completion of her case plan, she failed to actively engage in the available services to address her issues. Mother took a domestic violence class, but was observed to be inattentive in the class. Mother started individual psychological counseling but has not regularly attended the sessions.
{¶21} As to T.P., the GAL noted that T.P. has been in the same foster family with his brother Q.H. since he was born. The foster family reported T.P. to be a healthy and happy baby, his development right on target. The brothers were close. T.P. was fond of his brother, and Q.H. was very good with T.P. The GAL recommended in her report that it was in the best interest of T.P. to be placed in the permanent custody of CCDCFS.
{¶23} Upon consideration of the trial testimony and the GAL‘s report, the trial court found clear and convincing evidence for the agency to be granted permanent custody. The court found that the child cannot be placed with his parent within a reasonable time or should not be placed with the parent. The court also found permanent custody is in the best interest of the child after a consideration of the pertinent statutory factors.
{¶24} On appeal, mother assigns a single assignment of error. She contends that the granting of permanent custody was against the manifest weight.
{¶25} We begin with the recognition 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). While we have emphasized 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, we are also mindful that [a]ll 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).
{¶26}
{¶27} T.P. has not been in the agency‘s custody for twelve months of a consecutive 22-month period, or abandoned or orphaned. The agency moved for custody on the ground of
{¶28} In order to find the existence of this factor, the trial court is to consider 16 enumerated factors under
{¶29} Only one of the enumerated factors under
{¶30} In fact, once the court has properly determined that one of the enumerated factors exist, it is mandated to enter a finding that the child cannot or should not be placed with either of his parents within a reasonable period of time In re Hauserman, 8th Dist. Cuyahoga No. 75831, 2000 Ohio App. LEXIS 338, *12 (Feb. 3, 2000), citing In re Shanequa H., 109 Ohio App.3d 142 (6th Dist.1996). As this court explained in In re Mayle, 8th Dist. Cuyahoga Nos. 76739 and 77165, 2000 Ohio App. LEXIS 3379 (July 27, 2000), [t]he clear import of
(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.
{¶32} To grant permanent custody, therefore, the juvenile court is required to find, by clear and convincing evidence, that one of the factors enumerated in
{¶33} Applying the two-part analysis in this case, because the child is not abandoned or orphaned, and the child has not been in the temporary custody of the agency
{¶34} Clear and convincing evidence is that which will produce in the trier of fact a firm belief or conviction as to the facts sought to be established. In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. While requiring a greater standard of proof than a preponderance of the evidence, clear and convincing evidence requires less than proof beyond a reasonable doubt. In re Parsons, 9th Dist. Lorain Nos. 97CA006662 and 97CA006663, 1997 Ohio App. LEXIS 5141 (Nov. 12, 1997).
{¶35} As for our own role on appeal from the trial court‘s decision, we are cognizant that a juvenile court‘s termination of parental rights and award of permanent custody to an agency is not reversed unless the judgment is not supported by clear and convincing evidence. In re: Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist.1997).
Clear and Convincing Evidence Supports Permanent Custody
{¶36} Here, under the first part of the permanent custody analysis, the court found the existence of the
{¶37} The court found that despite reasonable case planning and diligent efforts by the agency, the parents have failed continuously and repeatedly to substantially remedy the conditions causing the child‘s removal (
{¶38} Our review indicates that the finding that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents is supported by the record. T.P.‘s father is still incarcerated for abusing him. Although
{¶40} As to the second part of the permanent custody analysis, the trial court, noting all pertinent statutory factors pursuant to
{¶41} Our review of the record also reflects clear and convincing evidence in support of the trial court‘s finding regarding the best interest of the child. Although mother and the child appeared to have a good relationship during the visitations, mother exposed the child to her emotional instability and aggressive conduct with others (
{¶42} Our review of the record shows the juvenile court‘s judgment granting permanent custody of T.P. is supported by clear and convincing evidence. Recognizing
{¶43} Judgment affirmed.
It is ordered that appellee recover of 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 juvenile court 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.
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
Notes
[I]t‘s kind of warm outside. We‘re all sitting on the patio and I‘m trying to feed [Q.H.], and he did not want to eat at all. So my mom, she‘s like, my intuition is telling me something is wrong with my grandson. He feels like he has a fever.
So usually my mom just — for me, I‘ll just — she‘s a mom. She‘s just always trying to diagnose somebody with something. She thinks she‘s a doctor. So I‘m like, there‘s nothing wrong with him. She‘s like, there is something seriously wrong with my grandson. So I‘m like, okay. Well, if you feel there‘s something wrong with him, then you take him to the emergency room because he was perfectly fine when I left this morning.
[GAL]: Are you saying that the bruises appeared between the time —
[mother]: Yes.
[GAL]: [Q.H.] left your house and got to the hospital?
[mother]: The bruises appeared by the time that they fully laid him down. By the time they took off his clothes, yes, the bruises appeared on his body.
[GAL]: He had multiple bruises. He had bruises other places on his stomach. You did not see them when you changed him?
[mother]: No, I did not.
GAL]: He also had broken ribs in various stages of healing. Did you ever see a bruise on your son‘s body when you bathed him or changed him or dressed him?
[mother]: My son has never indicated to me that he was hurting. If my son would have showed me like any type of wince, I would have checked my son. You‘re asking me as if I — okay. I admitted that I failed to protect my children, but I‘m not going to sit up here and let you say
[GAL]: I‘m not talking about immunization. I‘m talking about your son who had broken ribs in multiple stages of healing when he went to the hospital. He had bruises, and you‘re telling me that you never –
[mother]: I‘m telling you
[GAL]: — noticed a single bruise on your child?
[mother]: Have you seen any bruises on his ribs? Have you seen — did they take any pictures? Okay. So you‘re shaking your head, — Tracy [addressing the social worker]. Where are the pictures?
[GAL]: I have read all the medical reports.
[mother]: No. Did you see?
[GAL]: okay.
* * *
[GAL]: I‘m a little bit confused by some of your testimony. You said that you didn‘t know that your children were abused, and about a minute later you said you take full responsibility because you know they were abused. Which one of those two is it?
[mother]: You are trying to manipulate my mind. I just said that now that I have knowledge of knowing through my domestic violence that children watching someone be abused, that is abuse. That‘s what I just said. I did not know my son was harmed. But now that I know through my domestic violence classes and paying attention and actually looking up on it, that children seeing that is still abuse.