Opinion
No. 109647
10-01-2020
Appearances: Prugh Law, L.L.C., and Leigh Prugh, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division
Case No. AD18903583
Appearances:
Prugh Law, L.L.C., and Leigh Prugh, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee. MICHELLE J. SHEEHAN, J.:
{¶ 1} Appellant M.W., mother of B.M., appeals the juvenile court's grant of permanent custody of the minor child B.M. to the Cuyahoga County Division of Child and Family Services (hereinafter, "CCDCFS" or "agency"). Mother alleges error in the proceedings. Specifically, 1) the agency did not show that it had made reasonable efforts to reunite the family pursuant to R.C. 2151.413(D), and 2) the juvenile court's decision to grant permanent custody to the agency was against the manifest weight of the evidence. Because we find that the juvenile court correctly determined the agency did make reasonable efforts to reunite the family and made its decision to award permanent custody based upon competent, credible evidence, we affirm the judgment of the juvenile court granting permanent custody. SUBSTANTIVE FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 16, 2018, the agency filed a complaint alleging neglect and abuse of B.M. with a prayer seeking temporary custody regarding B.M. and three of his older siblings. CCDCFS became involved with appellant after one of her children, two-year old B.M., ingested a cigarette laced with PCP while left unsupervised on March 2, 2018. The complaint alleged that appellant and B.M.'s alleged father had substance abuse problems preventing them from providing appropriate care for B.M. The complaint further alleged the parents lacked adequate housing for the minor child. At the initial hearing, appellant stipulated to the allegations and B.M. was adjudicated abused and neglected. B.M. was temporarily committed to CCDCFS custody. A case plan was thereafter filed with the juvenile court. On March 18, 2019, the juvenile court held a dispositional review hearing and granted the agency's motion for an extension of temporary custody. In its findings of fact, the juvenile court noted the agency had made reasonable efforts to return B.M. home.
{¶ 3} In September 2019, CCDCFS moved for permanent custody of B.M. A hearing was held on the motion on January 21, 2020. At the hearing, social worker Shelle Towns testified appellant lacked appropriate housing and was not able to provide for B.M.'s basic needs. She stated appellant had not addressed the issues causing removal or followed through with the case plan. As to the efforts taken by CCDCFS, Ms. Towns said that to facilitate the substance abuse case plan objective, the agency offered appellant numerous services and referrals. Although appellant completed a drug treatment program in November 2018, since that time, she failed to comply with drug screen requests or verify her sobriety. She completed only one drug screen for the agency in October 2019. Thereafter, she failed to cooperate on four drug screening requests and failed to achieve her stable housing objective, even though she was referred to a community collaborative through University Settlement to assist with housing. Ms. Towns testified that appellant did not have the ability to meet B.M.'s basic needs.
{¶ 4} Ms. Towns also addressed B.M.'s placement, stating that B.M. was living in an appropriate two-bedroom apartment where all his basic needs were being met. She noted B.M. responds and interacts well with his caretaker, who has created a routine with him and that the caretaker loves B.M. and has a goal of adopting him. She said B.M.'s caregiver became a licensed foster parent and maintained an open visitation schedule for appellant to see B.M.; appellant visited once a month, occasionally coming every week or every other week.
{¶ 5} Ms. Towns testified that she believed it to be in B.M.'s best interest to be committed to permanent custody of the agency based upon the lack of engagement from the parents with case plan services. At the hearing, B.M.'s guardian ad litem ("GAL"), stated that B.M. was bonding with his caregiver and doing very well in that home. The GAL recommended the juvenile court grant permanent custody to the agency, noting that despite having 22 months, appellant did not complete the case plan, failed to demonstrate six months of sobriety, and had not appeared in court since the first hearing.
{¶ 6} On March 12, 2020, the juvenile court granted the agency permanent custody of B.M. and terminated appellant's parental rights. In its order, the juvenile court found that B.M. was committed to the temporary custody of CCDCFS for 19 months. As to appellant, it found that a case plan was filed requiring her to complete a drug assessment, comply with treatment recommendations, submit to random drug screens, and maintain stable and appropriate housing. It found appellant failed to complete her case plan objectives, failed to remedy the concerns that led to B.M.'s removal, failed to demonstrate sobriety, and failed to obtain stable housing, despite referrals by the agency. It further found that appellant had three other children removed from her care in part due to her substance abuse issues and housing issues. The juvenile court also found that B.M. was bonded with his current caregiver and was thriving.
{¶ 7} The juvenile court found that B.M. was in need of a legally secure permanent placement that could not be achieved without the grant of permanent custody, and that appellant and alleged father failed to remedy the conditions that led to the child's removal, despite having a year and a half to do so. It finally found that CCDCFS made reasonable efforts to assist the parents to remedy the problems that initially caused B.M. to be placed outside the home and that the parents failed to continuously and repeatedly substantially remedy the conditions causing B.M. to be placed outside the home. LAW AND ANALYSIS
{¶ 8} In her first assignment of error, appellant asserts that the preconditions for a grant of permanent custody pursuant to R.C. 2151.413 were not met. She specifically argues that the agency did not show that it made reasonable efforts to reunite the family pursuant to R.C. 2151.419. Appellant acknowledges in her brief that pursuant to In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, the mandate of reasonable efforts to return the child to the home set forth in R.C. 2151.419 does not apply to the motion for permanent custody in this case, but argues that such condition was nonetheless not met.R.C. 2151.413(A) permits a public children services agency to file a motion for permanent custody of a child who has been committed to the temporary custody of the agency. R.C. 2151.413(D) requires an agency to file a motion for permanent custody of any child who has been in custody for 12 or more months of a consecutive 22-month period, unless one of several enumerated exceptions applies. One such exception states that an agency shall not file a motion for permanent custody, "[i]f reasonable efforts to return the child to the child's home are required under section 2151.419 of the Revised Code, the agency has not provided the services required by the case plan to the parents of the child or the child to ensure the safe return of the child to the child's home." R.C. 2151.414(D)(3)(b),
{¶ 9} However, R.C. 2151.419(A)(1) is not applicable in this case. The Ohio Supreme Court held that "R.C. 2151.419(A)(1) does not apply in a hearing on a motion for permanent custody filed pursuant to R.C. 2151.413." In re C.F. at ¶ 43. Further, the juvenile court found on two separate occasions prior to the permanent custody hearing that the agency made reasonable efforts to reunify appellant and B.M., and made the same finding in its order granting permanent custody. These findings were based on evidence presented at hearings as to the actions and referrals given to appellant throughout the pendency of the temporary custody order. Accordingly, appellant's first assignment of error is overruled.
{¶ 10} In her second assignment of error, appellant complains that the award of permanent custody was against the manifest weight of the evidence. She claims 1) the agency had a duty to more diligently and more specifically drug test appellant, and 2) the agency had a duty to do more to assist appellant finding suitable housing. This court reviews the grant of permanent custody under an abuse of discretion standard. In re S.S., 8th Dist. Cuyahoga No. 109356, 2020-Ohio-3039, ¶ 36. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 11} A juvenile court's decision to grant permanent custody will not be reversed as being against the manifest weight of the evidence when the record contains competent, credible evidence by which it could have found that the essential statutory elements for an award of permanent custody have been established. In re B.P., 8th Dist. Cuyahoga Nos. 107732 and 107735, 2019-Ohio-2919, ¶ 22, citing In re K.Z., 8th Dist. Cuyahoga No. 107269, 2019-Ohio-707, ¶ 82. R.C. 2151.414(B) provides that permanent custody of a child may be awarded to a children services agency if the court finds, by clear and convincing evidence, that (1) it is in the best interest of the child to grant permanent custody of the child to the agency, and (2) that any of the conditions listed in R.C. 2151.414(B)(1)(a)-(e) apply.
{¶ 12} The juvenile court is required under R.C. 2151.414(D)(1) to consider "all relevant factors," including, but not limited to the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents, and out-of-home providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; (4) 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; and (5) whether any of the factors set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e).
{¶ 13} In conducting a best-interest analysis under R.C. 2151.414(D), "[t]he court must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors. 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.
{¶ 14} The juvenile court's decision awarding permanent custody to CCDCFS demonstrates that it considered the relevant factors pursuant to R.C. 2151.414(D)(1). There were significant, relevant factors that supported the juvenile court's award of permanent custody and termination of parental rights. These factors were supported by credible, competent evidence, including the reasons for agency involvement, the length of time the temporary custody was in place, the need for permanent custody, appellant's inability to engage with and complete the case plan, and the fact appellant had three other siblings removed from her care for similar reasons.
{¶ 15} Further, the GAL recommended the grant of permanent custody and the juvenile court found B.M. was placed in a home in which he was bonded with his caregiver and was thriving. As the Supreme Court of Ohio explained, "[R.C. 2151.414(D)] requires a weighing of all the relevant factors * * * [and] requires the court to find the best option for the child * * *." In re Schaefer at ¶ 64. The trial court's decision demonstrates that it considered all the factors, and its decision was based on competent, credible evidence. As such, we cannot say that the decision to grant permanent custody was against the manifest weight of the evidence and appellant's second assignment of error is overruled. CONCLUSION
{¶ 16} Our review of the record reflects that the juvenile court considered the relevant statutory factors in determining the best interest of the child pursuant to R.C. 2151.414 and did not abuse its discretion. We further find the juvenile court's decision to grant permanent custody to CCDCFS and terminate parental rights is supported by competent, credible evidence and is not against the manifest weight of the evidence.
{¶ 17} 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 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. /s/_________
MICHELLE J. SHEEHAN, JUDGE FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR