Opinion
No. 104129
09-15-2016
IN RE: A.P. AND C.S. Minor Children [Appeal By Mother]
ATTORNEYS FOR APPELLANT Dale M. Hartman 2195 South Green Road Cleveland, Ohio 44121 Mark Witt 6209 Barton Road North Olmsted, Ohio 44070 ATTORNEYS FOR APPELLEE, C.C.D.C.F.S. Timothy J. McGinty Cuyahoga County Prosecutor BY: Colleen R. Cassidy Ulrich Assistant Prosecuting Attorney C.C.D.C.F.S. 8111 Quincy Avenue Cleveland, Ohio 44104 Also listed: For Father of A.P. N.K., pro se 9121 Ranch Road Apt. 803 Streetsboro, Ohio 44241 For Father of C.S. Robert L. Tobik Cuyahoga County Public Defender By: Margaret O. Isquick Assistant Public Defender 9300 Quincy Avenue, 5th Floor Cleveland, Ohio 44106 For A.P. and C.S. Jay L. Mattes William D. Mason Co. 4699 Azalea Lane North Olmsted, Ohio 44070 Guardian ad litem Michael B. Granito P.O. Box 43305 Richmond Heights, Ohio 44143 Guardian ad litem for mother Gail A. Nanowsky P.O. Box 26060 Fairview Park, Ohio 44126
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division
Case Nos. AD 14908907 and AD 14908908 BEFORE: S. Gallagher, J., McCormack, P.J., and Laster Mays, J.
ATTORNEYS FOR APPELLANT
Dale M. Hartman
2195 South Green Road
Cleveland, Ohio 44121 Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070 ATTORNEYS FOR APPELLEE, C.C.D.C.F.S. Timothy J. McGinty
Cuyahoga County Prosecutor BY: Colleen R. Cassidy Ulrich
Assistant Prosecuting Attorney
C.C.D.C.F.S.
8111 Quincy Avenue
Cleveland, Ohio 44104
Also listed:
For Father of A.P.
N.K., pro se
9121 Ranch Road
Apt. 803
Streetsboro, Ohio 44241
For Father of C.S.
Robert L. Tobik
Cuyahoga County Public Defender
By: Margaret O. Isquick
Assistant Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106
For A.P. and C.S.
Jay L. Mattes
William D. Mason Co.
4699 Azalea Lane
North Olmsted, Ohio 44070
Guardian ad litem
Michael B. Granito
P.O. Box 43305
Richmond Heights, Ohio 44143
Guardian ad litem for mother
Gail A. Nanowsky
P.O. Box 26060
Fairview Park, Ohio 44126 SEAN C. GALLAGHER, J.:
{¶1} Appellant appeals from the trial court's decisions that awarded permanent custody of two children, A.P. and C.S., to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). Upon review, we affirm.
{¶2} Appellant ("mother") is the mother of both children. The children have different fathers. The father of A.P. did not engage in any case plan services, has not communicated with the agency or A.P. during the case, and his whereabouts were unknown. Cha.S. is the father of C.S.
{¶3} On July 14, 2014, CCDCFS filed a complaint for abuse, neglect, and temporary custody of A.P., who was then nine years old, and C.S., who was then two years old. CCDCFS also filed a motion for predispositional temporary custody. Following a hearing, the children were committed to the emergency custody of CCDCFS on July 14, 2014.
{¶4} The children were adjudicated neglected and abused and were placed in the temporary custody of CCDCFS in October 2014. In July 2015, CCDCFS filed a motion to modify temporary custody to permanent custody. A hearing was held on the motion on January 7, 2016. At the time of the hearing, A.P. was 11 years old and C.S. was four years old. Prior to the hearing, the trial court held an in camera interview with A.P.
{¶5} The trial court heard testimony and accepted evidence in the matter. The record reflects that the children were committed to CCDCFS due, in part, to concerns of domestic violence, unstable housing, and the inability to meet the children's basic needs. The children were placed with their maternal great-aunt and great-uncle, with whom they remained throughout the entirety of the cases.
{¶6} Case plans were developed for mother and Cha.S., which included objectives for domestic violence, substance abuse, mental health, and basic needs. Mother and Cha.S. made a few visits with the children from July until October 2014. No visits or contact was made from October 2014 until June 2015. Further, despite monthly attempts by CCDCFS to engage the parents, no case plan services were engaged in until June 2015, which was almost a year after the children were committed to the custody of CCDCFS. At that time, mother and Cha.S. moved to Alliance, Ohio. They began to engage in case plan services, and visitation began to occur once a week for two to four hours. Mother was nurturing and caring with the children, and they have a good relationship. Cha.S.'s visitation with the children was appropriate. Mother and Cha.S. were living in a two-bedroom apartment. The housing was satisfactory, but the second bedroom had no furniture. At the time of the hearing, the case plans were not complete with respect to mental health and domestic violence, for which no certificates of completion were provided.
{¶7} Testimony from the great-aunt revealed that the children, along with mother and Cha.S., came to live with the great-aunt and great-uncle in September 2013. The great-aunt described fighting between the parents. In early 2014, Cha.S. went to Oregon, followed by mother, and they left the children behind. When they returned, the parents stayed in hotels while the children remained with their great-aunt and great-uncle. That was the situation until CCDCFS became involved in July 2014. During the pendency of the cases, the children have remained in the care of their great-aunt and great-uncle. They reside in a three-bedroom home, and the great-aunt and great-uncle have ensured that the children's educational needs and basic needs are met. The children have a strong bond with their relative placement. The children were doing well until visitation with their parents resumed, at which point C.S. began having behavioral problems and A.P. began to struggle in school. Mother and Cha.S. did not provide any support or other assistance to the children during the entire time the children were in the custody of CCDCFS.
{¶8} A social worker involved in the case testified to her belief that permanent custody was in the best interest of the children. The guardian ad litem for the children recommended an award of permanent custody to CCDCFS.
{¶9} On January 22, 2016, the trial court issued a journal entry for each child that terminated all parental rights and awarded permanent custody to CCDCFS. This appeal followed.
An appeal was also filed by Cha.S., the father of C.S. This court also affirmed the grant of permanent custody in that case. In re A.P. & C.S., 8th Dist. Cuyahoga No. 104130 (Sept. 15, 2016). --------
{¶10} "An appellate court will not reverse a juvenile court's termination of parental rights and award of permanent custody to an agency if the judgment is supported by clear and convincing evidence." In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48, citing In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶11} Mother's sole assignment of error claims that the trial court's decision to award permanent custody to CCDCFS was against the manifest weight of the evidence. A trial 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 K.N., 1st Dist. Hamilton No. C-120111, 2012-Ohio-2189, ¶ 12.
{¶12} R.C. 2151.414(B) allows a court to grant permanent custody of a child to a children services agency if, after a hearing, the court determines, by clear and convincing evidence, that permanent custody is in the best interest of the child and that any of the four conditions set forth in R.C. 2151.414(B)(1)(a)-(e) applies.
{¶13} In the case of each child, the trial court found that the child had been abandoned (R.C. 2151.414(B)(1)(b)). "Abandoned" is defined by R.C. 2151.011(C), which provides that "a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." Evidence was presented that mother and Cha.S. did not visit or contact the children from October 2014 until June 2015, which was a period in excess of 90 days.
{¶14} Although the children were abandoned, the trial court also found in each case that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent (R.C. 2151.414(B)(1)(a)) and made the relevant considerations under R.C. 2151.414(E). The court found that each child was abandoned; that following the placement of the child outside the child's home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home; and that the parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child.
{¶15} Additionally, the trial court found in each case that the child had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period (R.C. 2151.414(B)(1)(d)). The record reflects the children were placed in the custody of CCDCFS on July 14, 2014, and had continuously remained in the temporary custody of CCDCFS through the time of the permanent custody hearing on January 7, 2016.
{¶16} If any of the conditions outlined in R.C. 2151.414(B)(1)(a)-(e) exists, the trial court may proceed to consider whether the grant of permanent custody to the agency is in the best interest of the child. In re J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 44. 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.
{¶17} In determining the best interest of a child, R.C. 2151.414(D)(1) directs the trial court 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).
{¶18} Here, the court considered all the relevant factors pursuant to R.C. 2151.414(D) and found by clear and convincing evidence that "a grant of permanent custody is in the best interests of the child[.]" The children had been in the temporary custody of CCDCFS since July 2014. Mother and Cha.S. did not participate in case plan services or establish a stable residence until June 2015. They did not visit or contact the children for many months and had abandoned the children. When visitation began after the lengthy absence, C.S. began having behavioral problems and A.P. began to struggle in school. The court held an in camera interview with A.P. The guardian ad litem and the social worker advocated that permanent custody be awarded to CCDCFS. The children have been residing with their great-aunt and great-uncle, with whom they have a strong bond. The record supports the determination that permanent placement could not be achieved without a grant of permanent custody.
{¶19} We recognize that mother eventually engaged in services required by the case plan. Although commendable, this does not of itself preclude a grant of permanent custody to a children services agency. Substantial compliance with a case plan does not mean that the parent has achieved the ultimate goals of the plan or that the parent has substantially remedied the conditions that caused the children to be removed. In re J.B., 8th Dist. Cuyahoga Nos. 98566 and 98567, 2013-Ohio-1706, ¶ 139. Although mother participated in case plan services and had appropriate visitation, she had abandoned the children and she did not provide any support or other assistance to the children during the entire time the children were in the temporary custody of CCDCFS.
{¶20} We also recognize that the right to parent one's child is a fundamental right. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. However, "neglected and dependent children are entitled to stable, secure, nurturing and permanent homes in the near term * * * and their best interest is the pivotal factor in permanency case." In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 35.
{¶21} Further, in determining permanent custody, although family unity and "blood relationship" are important factors to consider, neither is controlling, nor is the mere existence of a good relationship. In re T.W., 8th Dist. Cuyahoga Nos. 86084, 86109, and 86110, 2005-Ohio-6633, ¶ 15. "A child's best interests require permanency and a safe and secure environment." In re Holyak, 8th Dist. Cuyahoga No. 78890, 2001 Ohio App. LEXIS 3105 (July 12, 2001).
{¶22} The record contains sufficient competent, credible evidence to support the trial court's decisions under a clear and convincing standard. Mother's sole assignment of error is overruled.
{¶23} Upon our review of the record, we find the trial court's decision in each child's case was supported by clear and convincing evidence. We affirm the trial court's decisions awarding permanent custody of each child to CCDCFS and terminating mother's parental rights.
{¶24} 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. SEAN C. GALLAGHER, JUDGE TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR