IN RE: T.R.-B., A Minor Child [Appeal By V.B., Mother]
No. 106071
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: August 2, 2018
2018-Ohio-3044
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. AD 14911111
Judith M. Kowalski
ATTORNEYS FOR APPELLEES
FOR C.C.D.C.F.S.
Michael C. O‘Malley Cuyahoga County Prosecutor By: Laura Brewster Assistant County Prosecutor 3955 Euclid Avenue Cleveland, Ohio 441135
Cheryl Rice Assistant County Prosecutor 8111 Quincy Avenue, Room 440 Cleveland, Ohio 44104
For Minor Child
Dean Colovas Dean A. Colovas, Atttorney at Law 4403 St. Clair Avenue The Brownhoist Building Cleveland, Ohio 44103
Guardian Ad Litem for Minor Child
Jonathan Z. Wilbur 13940 Cedar Road, Suite 246 Cleveland Heights, Ohio 44118
For Father
Gregory Stralka 6509 Brecksville Road P.O. Box 31776 Independence, Ohio 44106
{¶1} Appellant (“Mother“), appeals from the juvenile court‘s judgment granting permanent custody of the minor child, T.R.-B. (d.o.b. 01/07/01), to the Cuyahoga County Department of Children and Family Services (“CCDCFS“). For the reasons set forth below, we affirm.
{¶2} In August 2014, CCDCFS filed a complaint for temporary custody of T.R.-B. and his siblings, A.B. (d.o.b. 07/03/04) and R.B. (d.o.b. 08/19/07). CCDCFS amended its complaint in October 2014. With regard to T.R.-B., the amended complaint alleges that in July 2014, Mother was arrested and charged with domestic violence and child endangering because of an incident with T.R.-B. Mother was subsequently convicted of domestic violence and child endangering. T.R.-B. was previously adjudicated dependent because of Mother‘s failure to ensure he attend school. The complaint further alleges that Mother was living with a relative and in need of independent, stable housing. Mother was previously diagnosed with bipolar disorder, and has recently undergone an updated assessment. Lastly, the complaint alleges that Father had established paternity, but he fails to support, visit, or communicate with T.R.-B.
{¶3} Following a hearing in March 2015, T.R.-B. and his siblings were adjudicated abused and dependent.1 T.R.-B. and A.B. were committed to the temporary custody of CCDCFS, and R.B. was committed to the legal custody of his father. In September 2015, the court granted CCDCFS‘s motion for extension of temporary custody for T.R.-B. and A.B., finding that there has not been significant progress on the case plan by Mother.
{¶5} After the conclusion of trial, the juvenile court issued an order awarding permanent custody of T.R.-B. to CCDCFS.2 The court found that T.R.-B. is abandoned, and Mother has “failed continuously and repeatedly to substantially remedy the conditions causing [T.R.-B.] to be placed outside [his] home.” The court further found that
Mother has a chronic mental illness and chemical dependency, that is so severe that it makes the parent unable to provide an adequate, permanent home for the child at the present time[.]
Mother is repeatedly incarcerated[,] and the repeated incarceration prevents the parent from providing care for [T.R.-B.]
Mother and [F]ather have neglected [T.R.-B.] between the date the original complaint was filed and the date of the filing of this motion by the failure to regularly visit, communicate, and/or support [T.R.-B.]
* * *
Mother and [F]ather are unwilling to provide food, clothing, shelter, or other necessities for [T.R.-B.]; or to prevent [T.R.-B.] from suffering emotional and/or mental neglect, as evidenced by their unwillingness to successfully complete a case plan so they can provide for the child.
Upon considering all of the required elements, the court found that a grant of permanent custody is in T.R.-B.‘s best interest.
{¶6} It is from this order that Mother appeals, raising the following two assignments of error for review.
The trial court erred to the prejudice of [Mother] and contrary to the best interests of the child when it granted custody against the child‘s wishes.
Assignment of Error Two
The trial court erred to the prejudice of [Mother] by not appointing a Guardian Ad Litem for her.
Permanent Custody
{¶7} In In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15, we stated:
Parents have a constitutionally protected interest in “the care, custody, and management of their child[ren].” Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. But those rights are “always subject to the ultimate welfare of the child.” In re B.L., Franklin App. No. 04AP-1108, 2005-Ohio-1151, ¶ 7, citing In re Cunningham (1979), 59 Ohio St.2d 100, 106, 391 N.E.2d 1034.
{¶8} A trial court may terminate parental rights and grant permanent custody of a child to a children‘s services agency if the court finds, by clear and convincing evidence, that one of the conditions set forth in
{¶9}
{¶10} Here, the trial court found that T.R.-B. is abandoned, which satisfies the condition under
{¶11} With regard to the best-interest analysis under
{¶12} In determining the best interest of a child,
{¶13} We review a trial court‘s determination of a child‘s best interest under
{¶14} Mother argues that the grant of permanent custody to the agency was not in T.R.-B.‘s best interest because he expressed the desire to live with Mother and will reach the age of majority in January 2019.
{¶15} We note that the child‘s wishes is only one of five enumerated factors that the court is required to consider when determining whether a grant of permanent custody is in a child‘s best interest.
{¶16} In the instant case, a review of the record reveals that when the juvenile court considered each of the factors, it relied on the evidence in the entire record, including the GAL‘s
{¶17} As it relates to
{¶18} At the time of trial, Mother had been incarcerated for approximately ten months because of serious criminal charges pending against her at that time, and had not visited with T.R.-B. since her incarceration. Mother was released for an intermediate period of at least seven days and she did not have contact with T.R.-B. during that time. The social worker testified that Mother displayed aggressive behaviors during the visits with her children. Based on the evidence in the record, this factor weighs in favor of permanent custody.
{¶19} As it relates to
{¶20} As it relates to
{¶21} As it relates to
{¶22} Moreover, T.R.-B.‘s father had no contact with him during the pendency of the case and did not seek to support him. T.R.-B.‘s maternal grandmother was contacted to determine her interest in placement and custody, but she declined on two different occasions to cooperate with a home study to determine her appropriateness. The GAL also did not find the grandmother to be an appropriate placement or custodian.
{¶23} As it relates to
{¶24} This case is difficult given T.R.-B.‘s age and his stated desire to remain with Mother. But the juvenile court is “charged with the grave responsibility of determining the children‘s best interest, and this is not solely limited to the children‘s stated wishes.” In re J.T., 8th Dist. Cuyahoga Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 94, citing Shaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532. “As the reviewing court, we must not disturb the juvenile court‘s decision if it is supported by competent, credible evidence.” Id. Based on the foregoing testimony and evidence, the trial court determined by clear and convincing evidence that a grant of permanent custody to CCDCFS is in T.R.-B.‘s best interest. We agree.
{¶25} Accordingly, the first assignment of error is overruled.
GAL
{¶26} In the second assignment of error, Mother argues that the juvenile court prejudiced her when it did not appoint her a GAL because she suffers from mental illness. In support of her argument, Mother relies on
[i]n any proceeding concerning an alleged or adjudicated delinquent, unruly, abused, neglected, or dependent child in which the parent appears to be mentally incompetent or is under the age of eighteen years of age, the court shall appoint a GAL to protect the interest of that parent.
(Emphasis added.)
{¶27} While it is uncontested that Mother has bipolar disorder and that as part of her case plan she was required to undergo a psychological evaluation, there is nothing in the record to suggest that Mother is mentally incompetent. We note that a mental impairment does not necessarily mean that the adult is mentally incompetent, requiring the appointment of a GAL. In re T.S., 2009-Ohio-5496, at ¶ 20, citing In re K.P., 8th Dist. Cuyahoga No. 82709, 2004-Ohio-1448.
{¶28} Moreover, Mother never objected to a lack of assistance from a guardian at any
{¶29} Mother argues that she was prejudiced because she did not entirely grasp the risk she was taking by testifying at trial. There is no indication in the record, however, that Mother appeared mentally incompetent during the trial court proceedings. Prior to testifying at trial, the court engaged in an extensive colloquy with Mother regarding her decision to testify. The court asked Mother whether she understood that the proceedings were being recorded, that she had criminal charges currently pending against her, that the attorneys would be able to question her regarding those charges, and that the assistant prosecuting attorney handling her criminal case could get a copy of the record and that any statements she made could be used against her. The court further instructed Mother that any statements she made could be used to find her in violation of her existing probation. When Mother indicated that she understood that “to an extent,” the court further instructed Mother that even if her currently pending criminal charges were later dismissed, anything she testified to could still be considered a violation of her probation. At that time, Mother stated she understood the possible ramifications of her testimony. While Mother‘s attorney advised her not to testify at trial, at no time did her attorney suggest that Mother did not understand the proceedings or her decision to testify.
{¶30} Finally, even if the juvenile court‘s failure to sua sponte appoint a GAL were considered error, Mother is required to demonstrate that she was prejudiced by that error. In re T.S. at ¶ 21. Here, Mother makes no argument that appointing a GAL would have changed the outcome of the trial and, therefore, has failed to demonstrate any prejudice.
{¶31} The second assignment of error is overruled.
{¶32} Judgment is 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 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.
MARY EILEEN KILBANE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and KATHLEEN ANN KEOUGH, J., CONCUR