Opinion
110336
08-12-2021
IN RE S.D. A Minor Child [Appeal by Mother, S.S.]
Prugh Law, L.L.C., and Leigh S. Prugh, for appellant. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorneys, for appellee CCDCFS.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-20909670
Prugh Law, L.L.C., and Leigh S. Prugh, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorneys, for appellee CCDCFS.
JOURNAL ENTRY AND OPINION
MARY EILEEN KILBANE, JUDGE
{¶ 1} Appellant S.S. ("Mother") appeals from the juvenile court's decision awarding permanent custody of her minor child, S.D., to appellee Cuyahoga County Division of Children and Family Services ("CCDCFS"). For the following reasons, we affirm the decision of the trial court.
Factual and Procedural History
{¶ 2} Mother gave birth to her child S.D. on September 26, 2019. At birth, S.D.'s toxicology screen tested positive for cocaine, marijuana, and codeine. S.D. had to remain hospitalized until early November 2019 to be treated for withdrawal symptoms. S.D. has been in agency custody since the child's release from the hospital on November 6, 2019.
S.D.'s paternity has never been established.
{¶ 3} On November 12, 2020, CCDCFS filed a complaint in juvenile court alleging S.D. to be an abused and dependent child and seeking a disposition of permanent custody to CCDCFS. CCDCFS also filed a motion for predispositional custody of S.D. to CCDCFS. The complaint alleged Mother had an ongoing substance abuse problem, having tested positive for fentanyl, cocaine, and marijuana at the time of the child's birth. It alleged S.D.'s toxicology screen at birth tested positive for cocaine, marijuana, and codeine. The complaint also alleged Mother lacked basic provisions for the child; specifically, Mother had no source of income and no stable or independent housing to provide for the child. Last, it alleged that Mother has had a previous child, S.D.'s older sibling, removed from her care after being adjudicated in Cuyahoga J.C. No. AD16911336 as neglected due to Mother's substance abuse and housing issues. This child has been placed in the custody of an interested individual.
CCDCFS's complaint had been filed two previous times in Cuyahoga J.C. Nos. AD19912710 and AD20904271 but was dismissed prior to resolution. This was the third refiling.
{¶ 4} The court held a hearing on CCDCFS's motion for predispositional custody on November 12, 2020. After the hearing, the trial court granted CCDCFS's request for predispositional temporary custody and also found that the child's maternal aunt was willing to be the temporary custodian of the child pending the hearing on the complaint. On January 7, 2021, an adjudicatory hearing was held, at which the trial court heard testimony and received exhibits. After the hearing, the court found that S.D. was abused and dependent and the matter was continued for a dispositional hearing. The corresponding journal entry reflects that substance abuse was the basis for the adjudication and ordered Mother to submit to a chemical abuse assessment and to treatment if recommended. It was also ordered that Mother submit to at least one drug test a month for 12 consecutive months.
{¶ 5}On February 5, 2021, the court held a dispositional hearing on the agency's request for permanent custody of S.D. The trial court heard testimonial evidence from CCDCFS case worker Charlene Hill ("Hill"), S.D.'s maternal aunt/caregiver, and the child's guardian ad litem, Melanie GiaMaria ("GiaMaria"), as well as admitted exhibits into evidence in support of CCDCFS's case.
{¶ 6} Hill testified that she was originally assigned to the family's case in 2018 regarding S.D.'s older sibling. As noted in the CCDCFS's complaint, the elder child was ultimately placed in the custody of another in 2019 as a result of Mother's unresolved substance abuse and housing issues. Hill testified that Mother denied having a substance abuse problem to her. Hill testified regarding the case plan that was developed to assist Mother with her substance abuse and housing issue; however, Mother failed to engage with the case plan. Hill testified that she had not been able to do a home visit after several months of trying because no one answers the door. She is unsure who owns the house, but believes it is Mother's friend. She is unable to verify if the house is clean and safe for S.D. because she has not been permitted inside despite six attempts to gain access. She also testified she has had reports that there are concerns with the house, such as feces in the driveway. Last, she also testified that she had great difficulty getting in touch with Mother, who either would not answer the phone or would not provide Hill with updated contact information.
{¶ 7} Hill also testified regarding Mother's ongoing substance abuse issues. Hill arranged for a drug assessment through Catholic Charities on three separate occasions, but Mother failed to appear. Without the assessment, no further referral or treatment could occur. She also testified that Mother failed to submit to monthly drug screens, only submitting to two, and the most recent screen, less than a month before the hearing, was positive for fentanyl. Hill testified that Mother had told her about a recent drug assessment she had done two days prior to trial; however, Hill was unable to verify the result on such short notice and without Mother's consent. Hill testified that as of the hearing, CCDCFS had no documented sobriety date, no completion of a substance abuse assessment, and no verification of Mother's housing situation. Although Hill testified that Mother had text messaged her proof of employment two days before trial, overall Hill expressed concerns for S.D.'s safety and Mother's ability to provide for the child's basic needs.
{¶ 8} S.D.'s maternal aunt testified that S.D. had been placed with her and her husband since December 2019. The placement was facilitated by CCDCFS; however, after investigation, no relatives were identified as willing to accept permanent legal custody of S.D. Visits between S.D. and Mother were arranged by Mother and her sister for two hours a week. The aunt testified that there was a period from March through August 2020 when Mother failed to regularly visit the child, but otherwise she regularly attended the visits. The aunt also testified regarding her knowledge of Mother's history with substance abuse discussing Mother's overdose in 2017, her participation in a rehabilitation program in 2018, and having to take Mother to the hospital to have her stomached pumped once. Last, she testified regarding Mother's history of unstable housing, noting that Mother has lived with various individuals since S.D.'s birth.
The court takes judicial notice that beginning in March 2020 the COVID-19 pandemic began.
{¶ 9} The child's guardian ad litem, GiaMaria, submitted a report and offered her recommendation, which was to grant permanent custody to CCDCFS. Like Hill, GiaMaria testified about having communication issues with Mother and how she had received proof of employment from Mother the morning of the hearing. She also testified regarding her concerns with Mother's continuing substance issues, including the recent positive drug test in the month before the hearing. GiaMaria had reviewed Mother's recent drug assessment and was concerned by the inaccurate self-reporting she observed in the assessment by Mother. GiaMaria was particularly concerned that Mother had reported her date of sobriety as July 4, 2020, which was contradicted by the recent drug test being positive for fentanyl. GiaMaria was subjected to cross-examination by Mother's counsel regarding her recommendation, and the hearing was concluded.
{¶ 10} On February 12, 2021, the trial court granted the agency's motion for permanent custody, terminating all of Mother's parental rights and ordering S.D. to be placed in the permanent custody of CCDCFS. The court found that
notwithstanding reasonable case planning and diligent efforts by the agency to assist the mother to remedy the problems that initially caused the child to be placed outside the home, and over a year's time, the mother has failed substantially remedy or make progress towards case plan objectives for substance abuse treatment and sobriety; stable housing and basic needs. Mother failed to timely complete chemical dependency assessment to timely engage treatment. Mother refused the social worker's entry into her home to ensure that the needs of the child were or could be met.
The court found by clear and convincing evidence that the child "cannot be placed with one of the child's parents within a reasonable time and should not be placed with either parent" and that "a grant of permanent custody is in the best interests of the child."
{¶ 11} Mother now appeals the court's granting of permanent custody to CCDCFS, presenting one assignment of error for our review.
Law and Analysis
{¶ 12} In Mother's sole assignment of error, she argues that the trial court erred in granting permanent custody of S.D. to CCDCFS because its findings are against the manifest weight of the evidence.
{¶ 13} Under a manifest weight review the court assesses the credibility of witnesses and the quality of the evidence produced to determine whether the trier of fact reached an unreasonable conclusion. In re Martin, 8th Dist. Cuyahoga No. 78184, 2001 Ohio App. LEXIS 2079, 5 (May 10, 2001), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). "A reviewing court will not reverse a decision as against the manifest weight of the evidence unless the factfinder's decision is a miscarriage of justice." Id. That being said, this court is cognizant that
[i]n addition to the manifest-weight standard, however, we must also recognize the traditional deference afforded to juvenile custody determinations, and our duty to uphold such determinations absent an abuse of discretion. Although one might make the facile observation that a judge abuses his discretion when his custody determination is against the manifest weight of the evidence, an abuse of discretion in this context is generally considered to require a decision that can be characterized as unreasonable or arbitrary. Therefore, we must be thoroughly convinced that a judge's custody determination is against the manifest weight of the evidence before reversing on that ground.In re M. M., 8th Dist. Cuyahoga No. 79947, 2002-Ohio-472.
{¶ 14} "An agency may obtain permanent custody of a child in two ways. An agency may first obtain temporary custody of the child and then file a motion for permanent custody under R.C. 2151.413. Or an agency may request permanent custody as part of its original abuse, neglect, or dependency complaint under R.C. 2151.353(A)(4)." In re A.R., 8th Dist. Cuyahoga No. 109482, 2020-Ohio-5005, ¶ 30, citing In re E.P., 12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22.
{¶ 15} Here, the agency requested permanent custody of S.D. in its original complaint for abuse and dependency. As this court has previously stated:
When proceeding on a complaint with an original dispositional request for permanent custody, the trial court must satisfy two statutory requirements before ordering a child to be placed in the permanent custody of a children's services agency. Specifically, the trial court must find, "in accordance with division (E) of section 2151.414 of the Revised Code that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent," and further must determine "in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child." R.C. 2151.353(A)(4).In re A.R. at ¶ 31. This two-prong analysis begins with R.C. 2151.414(E), which requires a trial court to conduct a hearing to determine by clear and convincing evidence if one or more of the 16 conditions in (E)(1)-(16) exist. If even one of the conditions is met, the trial court must find that the child cannot or should not be placed with either parent. The trial court's findings in accordance with R.C. 2151.414(E) must be determined by clear and convincing evidence, which has been defined by this court as
that measure or degree of proof that is more than a "preponderance of the evidence," but does not rise to the level of certainty required by the "beyond a reasonable doubt" standard in criminal cases. * * * It "produces in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established."In re G.L., 8th Dist. Cuyahoga No. 110284, 2021-Ohio-2273, ¶ 36.
{¶ 16} Mother argues that the trial court's findings pursuant to R.C. 2151.414(E)(1), (4), (14) and (15) were not supported by clear and convincing evidence. Upon a thorough review of the evidence, we disagree.
{¶ 17} R.C. 2151.414(E)(1) (4), (14) and (15) state respectively:
(1) 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 * * *;
(4) 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;
(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
(15) The parent has committed abuse as described in section 2151.031 of the Revised Code against the child or caused or allowed the child to suffer neglect as described in section 2151.03 of the Revised Code, and the court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child's placement with the child's parent a threat to the child's safety.
{¶ 18} In regard to (E)(1), the trial court found in its February 12, 2020 entry that Mother "has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child's home." The evidence put forth at the hearing established that the first condition that caused S.D. to be placed outside his home was Mother's substance abuse issues. S.D. was born testing positive for cocaine, marijuana, and codeine and had to remain hospitalized for over a month to manage his withdrawal symptoms. CCDCFS was never provided documented proof of Mother's date of sobriety nor her completion of a substance abuse assessment. Mother failed to show up for at least three drug assessments. Further, Mother failed to regularly submit to random drug screens. Of greatest concern is that Mother's most recent drug screen, less than a month before the February hearing, was positive for fentanyl. Therefore, we find there is clear and convincing evidence in the record to support the trial court's finding pursuant to R.C. 2151.414(E)(1) that Mother has failed continuously and repeatedly to substantially remedy her drug abuse issues.
{¶ 19} R.C. 2151.414(E)(4) states in relevant part: "[t]he parent has demonstrated a lack of commitment toward the child by * * * showing an unwillingness to provide an adequate permanent home for the child[.]" Similarly, R.C. 2151.414(E)(14) states in relevant part: "[t]he parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child[.]" The trial court's entry included findings to support these two factors when it stated it found Mother showed a "lack of commitment toward the child by other actions, showing an unwillingness to provide an adequate permanent home for the child," and also found that Mother is "unwilling to provide food, clothing, shelter, and other basic necessities for the child." Hill's testimony established that Mother failed to engage in services designed to promote her reunification with S.D. in the year since the child's removal. Hill and GiaMaria testified that Mother failed to maintain any kind of regular communication with them. They both also testified that Mother never demonstrated that she had the ability to obtain and maintain adequate housing required to care for a child. There was also testimony from Mother's sister about Mother's various housing issues since S.D.'s birth. Therefore, there is clear and convincing evidence to support the trial court's findings that Mother "lacks a commitment" and an "unwillingness to provide shelter" pursuant to R.C. 2151.414(E)(4) and (14).
{¶ 20} Last, Mother argues the trial court improperly found that R.C. 2151.414(E)(15) was met when it found Mother "has committed abuse against the child and the Court determines that the seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child's placement with the child's parent a threat to the child's safety." This finding was supported by the evidence that the child was born with a toxicology screen positive for cocaine, marijuana, and codeine. Under Ohio law, a child is per se abused, as defined in R.C. 2151.031, when born with a positive toxicology screen. See In re AsF(F), 12th Dist. Madison Nos. CA2016-05-020 and CA2016-05-021, 2016-Ohio-7836, ¶ 25, citing In re Baby Boy Blackshear, 90 Ohio St.3d 197, 200, 736 N.E.2d 462 (2000) ("when a newborn child's toxicology screen yields a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for purposes of RC. 2151.031[D], per se an abused child."). Mother does not point to any evidence or make any arguments to rebut this finding. Therefore, there is clear and convincing evidence to support the trial court's finding pursuant to R.C. 2151.414(E)(15).
{¶ 21} While not argued by either Mother or CCDCFS, it is worth noting the trial court's entry also made findings pursuant to both (E)(9) and (11) as well which state as follows:
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section 2151412 of the Revised Code requiring treatment of the parent was journalized as part of a dispositional order issued with respect to the child or an order was issued by any other court requiring treatment of the parent.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to those sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child.
In its entry the trial court found that:
Mother has a chronic chemical dependency history with no verifiable sobriety date; [t]he parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued requiring treatment of the parent was issued by the Court requiring treatment of the parent.
This finding was based on the various testimonies from Hill, GiaMaria, and Mother's sister all informing the court Mother had a history of substance abuse, had repeatedly failed to participate in a substance abuse program, had failed to submit to regular drug screens, and the most recent drug screen before trial was positive for fentanyl. Similarly, Hill testified to being assigned as a case worker with Mother in 2018 regarding S.D.'s older sibling, who was permanently removed from Mother's care due to abuse and neglect in Cuyahoga J.C. No. AD16911336. Mother does not dispute her failure to attend the ordered drug treatment programs, her missed drug screens, or having her parental rights terminated regarding another child. As such, the trial court's findings in regards to (E)(9) and (11) are also supported by clear and convincing evidence.
{¶ 22} As stated above, the court must only find one of the conditions under R.C. 2151414(E)(1) to (16) for the court to be mandated to enter a finding that the child cannot or should not be returned to the parents. In re C.T., 8th Dist. Cuyahoga No. 110303, 2021-Ohio-2274, ¶ 69. Here, the court found, based on credible and competent evidence, that six of the conditions were met. Therefore, based on its findings pursuant to R.C. 2151.414(E)(1), (4), (9), (11), (14) and (15), the court was required to find that S.D. could not or should not be placed with either parent pursuant to R.C. 2151.414(E). We find, based on a thorough review of the evidence put forth at the hearing, that the court's findings in this regard are not against the manifest weight of the evidence.
{¶ 23} The second prong of this statutory scheme for permanent custody requires the trial court to determine "in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child." R.C. 2151.353(A)(4).
{¶ 24} In determining whether permanent custody is in the best interest of the child under R.C. 2151.414(D)(1), the juvenile court must consider "all relevant factors," including, but not limited to,
(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, or 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 and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state;
(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.In re C.T., 8th Dist. Cuyahoga No. 110303, 2021-Ohio-2274, ¶ 70. The court is required to consider each factor listed in R.C. 2151.414(D)(1)(a)-(e), but no one factor is given greater weight than the others. In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 23, citing In re Schaefer, 111 Ohio St.3d 498, 2006- Ohio-5513, 857 N.E.2d 532, ¶ 56. Importantly, only one of the factors in R.C. 2151.414(D)(1) need be found to support a finding that permanent custody is in a child's best interest and to terminate parental rights. In re J.C-A., 8th Dist. Cuyahoga No. 109480, 2020-Ohio-5336, ¶ 80.
{¶ 25} The court has considerable discretion in weighing the factors in R.C. 2151414(D)(1) such that we review the court's determination of a child's best interest for abuse of discretion. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and 109519, 2020-Ohio-4471, ¶ 76, citing In re DA., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. "A juvenile court abuses its discretion where its decision is unreasonable, arbitrary or unconscionable." In re C.T., 8th Dist. Cuyahoga No. 110303, 2021-Ohio-2274, ¶ 72, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 26} In its February 12, 2021, journal entry, the court stated that it considered the required factors pursuant to R.C. 2151.414(D)(1):
Upon considering the interaction and interrelationship of the child with the child's parents, siblings, relatives/foster parents; the age of the child; the custodial history of the child; 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 the report of the Guardian ad Litem; the [c]ourt finds by clear and convincing evidence that a grant of permanent custody is in the best interests of the child and the child cannot be placed with one of the child's parents within a reasonable time and should not be placed with either parent.
The [c]ourt finds that the child's continued residence in or return to the home of [Mother] will be contrary to the child's best interest.
The trial court was only required to find one of the factors, and as discussed above, there is evidence to support findings under (D)(1)(a) through (e). Of note, however, the evidence in this case heavily supports findings under (D)(1)(c) and (e). Under subsection (c), the court heard evidence that the child had been in CCDCFS's care from his birth on September 26, 2019, until the day of the hearing on February 5, 2020, which is well over 12 months. Similarly, as discussed above, the court heard evidence that pursuant to (D)(1)(e), that (E)(9) and (11) applied to Mother.
{¶ 27} Mother does not point to any findings pursuant to R.C. 2151.414(D)(1) that are unsupported by evidence in the record, nor does Mother direct our attention to any way in which the trial court's decision was unreasonable, arbitrary, or unconscionable. Therefore, following careful consideration of the testimony presented at the February 5, 2021 permanent custody hearing, we find that competent, credible, and clear and convincing evidence supports the trial court's findings that permanent custody is in the best interest of S.D. and that the court did not abuse its discretion.
{¶ 28} Mother's assignment of error is overruled.
{¶ 29} 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.
MICHELLE J. SHEEHAN, P.J., and LISA B. FORBES, J., CONCUR.