In re T.S.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 28, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-18-904732
Appearances:
Dale M. Hartman, for appellant.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee Cuyahoga County Division of Children and Family Services.
LARRY A. JONES, SR., P.J.:
{¶ 1} Appellant-mother, E.S. (“Mother“), appeals from the judgment of the trial court granting permanent custody of her child, T.S. (date of birth January 23, 2018) to the Cuyahoga County Division of Children and Family
Background
{¶ 2} The record shows that the agency first became involved with the family in April 2018 shortly after T.S. was born with the filing of a neglect case against Mother. The complaint alleged issues with medical neglect, basic needs relating to the child‘s malnourishment, and lack of housing, along with concerns relating to Mother‘s parenting skills, housing, and mental health. The complaint further alleged that the putative father, V.R., had yet to establish paternity, failed to exercise adequate parenting skills, judgment, or ensure that the child‘s basic needs were met.1
{¶ 3} CCDCFS sought temporary custody of T.S. and developed a case plan. In October 2018, T.S. was adjudicated neglected and ordered placed in the temporary custody of CCDCFS. He was placed in foster care. In April 2019, CCDCFS file a motion to modify temporary custody to permanent custody.2 The trial court held a hearing on the matter.
{¶ 4} Gohnnie Jackson (“Jackson“) testified that she was the caseworker assigned to the family. Jackson testified that T.S. was removed from Mother‘s care shortly after birth due to issues with failure to thrive and medical neglect. T.S. was
{¶ 5} T.S. had surgery to partially correct his condition but T.S.‘s doctors recommended additional surgery. According to Jackson, Mother refused to allow T.S. to have surgery, opining that “he would grow out of it.” Jackson testified that T.S. had not yet had the corrective surgery he needs to eat and eventually speak properly because Mother would not sign off on the child‘s surgery. At the time of the permanent custody hearing, T.S. continued to have medical issues, needed daily medication, had difficulty swallowing and chewing, and was involved in speech and occupational therapy. According to Jackson, Mother only attended one of T.S.‘s medical appointments and none of his therapy appointments. At one point, even though T.S. was in agency custody, Mother called and cancelled T.S.‘s therapy appointments and the caseworker had to reschedule the appointments. Mother‘s reason for not attending T.S.‘s medical appointments was that she was too busy or had to work, although Mother never provided proof of employment.
{¶ 6} Jackson testified that Mother was referred for a diagnostic mental health assessment and a psychiatric assessment as part of her case plan. Mother told the agency she had already completed an assessment with her own provider and would not do another one. Mother finally completed a mental health assessment but would not sign a release of information with regard to information
{¶ 7} Mother was referred to a parenting class, which she completed, but the agency had concerns that Mother did not benefit from the class. The agency referred Mother for an additional parenting class but Mother told Jackson that she was already taking parenting classes with another provider. Jackson testified that even after additional parenting classes, Mother still displayed concerning behaviors during visitation, including bringing food for T.S. that he could not eat and not paying attention to T.S.
{¶ 8} Mother sporadically visited with T.S. Mother did not visit from August until November 2018 and missed six visits between May and November 2019. In November 2019, Mother told her caseworker that she could not visit T.S. because she needed to focus on her current pregnancy. Mother resumed visits after she gave birth to A.S. in January 2020 but remained inconsistent with visitation.
{¶ 9} CCDCFS eventually referred Mother to providers that could assist her with housing; the agency did not initially refer her because Mother said she had housing. When Jackson went to Mother‘s stated address, a person at the house said Mother did not live there. Mother later admitted to Jackson that she lived in a shelter and was looking for housing.
{¶ 11} Yolanda Harris (“Harris“) testified that she had been treating Mother for the past five months as her mental health therapist as part of Mother‘s care plan that was developed at the shelter where Mother lived. Harris testified that her agency assessed Mother and diagnosed her with “adjustment order with anxiety.” According to Harris, she met with Mother once a week either in person or through telehealth and thought Mother was making progress.
{¶ 12} Harris testified that she had not spoken with Mother‘s CCDCFS caseworker because Mother had not signed a release, had not read Mother‘s previous psychological evaluations or medical records stemming from hospitalization for mental health reasons, and Mother‘s psychosocial history was based only on Mother‘s self-reporting.
{¶ 13} Jermeka Jackson (“Jermeka“) testified that she was employed at the shelter where Mother resided. Jermeka testified that Mother was able to live at the shelter for up to nine months, with a possible three-month extension, and the shelter would assist Mother in finding permanent housing. The shelter also provided case management services. According to Jermeka, Mother completed multiple parenting programs. Jermeka stated that Mother “really engaged in services,” but she was not able to see the practical application of those services
{¶ 14} According to Jermeka, she did not have access to Mother‘s case plan because Mother would not sign a release. Jermeka also testified that Mother did not initially inform shelter workers that T.S. was in agency custody. Mother told Jermeka that T.S. was staying with an aunt and that Mother was visiting him at the aunt‘s house.
{¶ 15} Mother testified by reading a letter to the court telling the court she was ready and willing to have her kids live with her and she loved her children very much. Mother thought it would be best if A.S. was returned to her care first and T.S. was returned to her care at a later, unspecified time.
{¶ 16} T.S.‘s guardian ad litem (“GAL“) recommended that the court grant the agency‘s motion and T.S. be placed in the permanent custody of CCDCFS citing Mother‘s lack of stable housing, inability or unwillingness to take care of T.S.‘s medical condition, the length of time T.S. had been in agency custody, and his bond with his sibling and foster family.
{¶ 17} Following the hearing, the trial court issued a judgment entry granting the motion to modify temporary custody to permanent custody. It is from this order that Mother appeals, raising two assignments of error for our review.
I. The verdict was against the manifest weight of the evidence, sufficiency of the evidence and contrary to law.
II. Mother received ineffective assistance of counsel in violation of her Sixth Amendment right to counsel.
Discussion and Analysis
{¶ 18} A parent has a “‘fundamental liberty interest’ in the care, custody and management” of his or her child, In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the right to raise one‘s own child is “‘an essential and basic civil right.‘” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However, this right is not absolute. It is “‘always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.‘” In re L.D., 8th Dist. Cuyahoga No. 104325, 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29, quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{¶ 19} All children have “‘the right, if possible, to parenting from either [biological] or adoptive parents[,] which provides support, care, discipline, protection and motivation.‘” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Termination of parental rights is “an alternative [of] last resort.” In re J.B. at id.; In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). When parental rights are terminated, the goal is to create “a more stable life” for dependent children and to “facilitate adoption to foster permanency for children.” In re N.B. at id., citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5 (Aug. 1, 1986).
{¶ 20} CCDCFS filed for permanent custody on the grounds that T.S. had been neglected. A neglected child is one “[w]ho lacks adequate parental care because of the faults or habits of the child‘s parents, guardian, or custodian.”
{¶ 21} In her first assignment of error, Mother claims that the trial court‘s decision to award permanent custody of T.S. to CCDCFS was contrary to law and went against the sufficiency and manifest weight of the evidence.
{¶ 22} When adjudicating a motion for permanent custody, juvenile courts apply a two-prong test pursuant to
{¶ 23} Second, the court must determine that it is in the best interest of the child to grant permanent custody to the agency. These findings must be supported by clear and convincing evidence. “Clear and convincing evidence” is that quantum of evidence that instills in the trier of fact a firm belief or conviction as to the allegations sought to be established. In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶ 24} A juvenile court‘s decision to grant permanent custody will not be reversed as being against the manifest weight of the evidence ‘“if the record contains some competent, credible evidence from which the court could have found that the essential statutory elements for permanent custody had been established by clear and convincing evidence.“’ In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
{¶ 25} The discretion that the juvenile court enjoys in deciding whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court‘s decision will have on the lives of the parties concerned. In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). Therefore, our review is for an abuse of discretion. “A court abuses its discretion when a legal rule entrusts a
{¶ 26} Here, the court satisfied the first prong of the statutory test, pursuant to
{¶ 27} The juvenile court found, pursuant to
The mother has caused or allowed the child to suffer neglect and the Court determines that the seriousness, nature or likelihood of recurrence of the neglect makes the child‘s placement with the child‘s parent a threat to the child‘s safety. The child has special medical, therapeutic and dietary needs. Mother has failed to regularly or periodically attend the child‘s medical appointments, including appointments related to his speech, physical and occupational therapist.
{¶ 29} This finding is also supported by the record. Mother was unable to show that she would be able to handle T.S.‘s medical needs. In fact, Mother refused to appreciate T.S.‘s medical condition, instead making her own determination, against medical advice, that T.S. would grow out of his medical condition. Mother did not attend T.S.‘s medical or therapy appointments, even though transportation to the appointments was provided to her. Mother did not comply with T.S.‘s participation in speech and occupational therapy, cancelling his appointments even when he was in agency custody.
{¶ 30} With respect to
{¶ 31} With respect to
{¶ 32} We have reviewed the record and find that there is competent credible evidence to support the trial court‘s findings that T.S. could not or should not be placed with a parent within a reasonable time.
12 Out of 22 Months
{¶ 33} Mother argues that the trial court erred in relying on the “12-of-22-months” provision to establish the first prong of the award of permanent custody under
{¶ 34} ‘“Before a public children-services agency or private child-placing agency can move for permanent custody of a child on
{¶ 36} In In re R.G., this court found that the trial court erred insofar as it determined that CCDCFS met
{¶ 37} This case is distinguishable. First, although the juvenile court stated in its journal entry that T.S. had been in agency custody for 12 out of 22 months, the trial court did not explicitly state that it was relying on the 12-out-of-22-months provision under
Best Interest Determination
{¶ 38} The second prong of the two prong test under
{¶ 40} Pursuant to
{¶ 41} Mother argues that the trial court‘s finding that permanent custody was in T.S.‘s best interest was against the manifest weight of the evidence. Mother does not support her contention other to say that there was a “lack of evidence” to support the best interest determination.
{¶ 42}
{¶ 43} With respect to
{¶ 44} Finally, with respect to
{¶ 46} Mother completed more than one parenting program, but there was no evidence that Mother adequately benefitted from those programs. Mother did not have stable housing. Mother told her CCDCFS caseworker, Jackson, that she had housing, but when Jackson went to the address, she was told that Mother did not live there. Jackson later learned that Mother lived in a shelter. According to her shelter caseworker, Jermeka, Mother would not be able to live in the shelter with T.S. even if all other obstacles to reunification were overcome due to the rules at the shelter. Mother told her CCDCFS caseworker that she was employed as a beautician but never provided proof of employment.
{¶ 47} Mother visited T.S. sporadically but did not pay adequate attention to him at visits and tried to feed him food that he could not have due to his medical
{¶ 48} We are mindful that Mother made some progress on her case plan and loves T.S. However, we find that there was competent, credible evidence going to the court‘s decision that permanent custody is in T.S.‘s best interest.
{¶ 49} In light of the above, the first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 50} In the second assignment of error, Mother contends that she was afforded ineffective assistance of trial counsel.
{¶ 51} The standard for an ineffective assistance of counsel claim in permanent custody proceedings is the same standard that applies in criminal cases. In re Nicholson, 8th Dist. Cuyahoga Nos. 75533, 75534, 75535, 75536, 75537, 75538, and 75539, 2000 Ohio App. LEXIS 223, 8 (Jan. 27, 2000), citing In re Brodbeck, 97 Ohio App.3d 652, 657, 647 N.E.2d 240 (3d Dist.1994). To
{¶ 52} Here, Mother alleges counsel was ineffective for failing to argue that the agency erred in prematurely filing the complaint for permanent custody because T.S. had not been in agency custody 12 out of 22 months at the time of the filing. We find no error. The agency specifically stated in its motion to modify temporary custody to permanent custody that it was being made pursuant
{¶ 53} Mother also claims that her attorney was ineffective because counsel did not make the right arguments to support Mother‘s claims. Mother appears to
{¶ 54} Because Mother has not satisfied either prong of the Strickland test, we find that she was not provided ineffective assistance of counsel. Mother‘s second assignment of error is overruled.
{¶ 55} 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 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.
LARRY A. JONES, SR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MICHELLE J. SHEEHAN, J., CONCUR