In re E.D.

2011 Ohio 2800

• Court: Ohio Court of Appeals
• Decided: June 9, 2011
• Docket: 96096
• Status: Published

Opinion

[Cite as In re E.D., 2011-Ohio-2800.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96096

IN RE: E.D.

A Minor Child

[Appeal By V.D., Mother]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-09900468

BEFORE: Celebrezze, J., Boyle, P.J., and Keough, J.

RELEASED AND JOURNALIZED: June 9, 2011 ATTORNEY FOR APPELLANT

R. Brian Moriarty R. Brian Moriarty, L.L.C. 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.

William D. Mason Cuyahoga County Prosecutor BY: Gina S. Lowe Assistant Prosecuting Attorney 4261 Fulton Parkway Cleveland, Ohio 44144

GUARDIAN AD LITEM FOR CHILD

Daniel Bartos 13363 Madison Avenue Lakewood, Ohio 44107

GUARDIAN AD LITEM FOR MOTHER

Suzanne Piccorelli 255 Falmouth Drive Rocky River, Ohio 44116

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, V.D.,1 appeals from the judgment of the common pleas

court, juvenile division, terminating her parental rights and granting

The parties are referred to herein by their initials or title in accordance 1

with this court’s established policy regarding non-disclosure of identities in juvenile permanent custody of her child, E.D., to appellee, the Cuyahoga County

Department of Children and Family Services (“CCDCFS”). For the following

reasons, we affirm.

{¶ 2} On January 9, 2009, CCDCFS filed a complaint alleging that E.D.

was a dependent child. In the complaint, CCDCFS gave notice of its intent

to take E.D. into custody pursuant to R.C. 2151.31(D) pending a hearing on

the merits of the complaint. An adjudicatory hearing was held on March 16,

2009, where appellant admitted that she: (1) had been diagnosed with bipolar

disorder and paranoid schizophrenia; (2) had five other children removed

from her care, four of whom were committed to the permanent custody of

CCDCFS, and one of whom was committed to the legal custody of the child’s

father; (3) had been homeless for two years preceding the filing of the

complaint; (4) was refusing to provide the name of the child’s father; and (5)

conceded that mental health professionals believed she was unable to

independently care for the child. Based on these admissions, the child was

adjudged to be dependent and was committed to the temporary custody of

CCDCFS.

{¶ 3} CCDCFS developed a case plan designed to reunite appellant

with E.D. Under the case plan, appellant was to attend to her mental health

issues, complete parenting education classes, obtain safe and appropriate

cases. housing for the child, and demonstrate an ability to provide for the child’s

basic needs.

{¶ 4} On August 27, 2009, CCDCFS filed a motion requesting

permanent custody of the child. That motion was filed because appellant

had stopped visiting the child and had not seen the child since April 30, 2009.

Additionally, appellant was not complying with mental health

recommendations, had not taken steps toward completing parenting

education classes, and had failed to secure safe and stable housing for the

child.

{¶ 5} An evidentiary hearing on the motion for permanent custody was

held October 14, 2010. On that date, the child had been in the custody of

CCDCFS for one year, nine months, and five days.

{¶ 6} CCDCFS social worker, Matthew Goodwin, testified at trial and

described appellant’s long history of mental health problems. He also

described appellant’s history with child protective services and her inability

to successfully parent her other five children. For those reasons, and

because appellant was residing with an individual who had been indicted on

35 counts of sexually oriented crimes against a child, Goodwin stated that he

believed permanent custody was in the child’s best interest.

{¶ 7} At the conclusion of the evidentiary hearing, appellant announced

to the court that she was in agreement with the child being committed to the

permanent custody of CCDCFS. She had previously indicated to Goodwin that she wished for E.D. to be adopted by the current foster parents. The

child’s guardian ad litem agreed and recommended to the court that

permanent custody was in the child’s best interest.

{¶ 8} Based on the evidence presented at the hearing, the trial court

granted permanent custody of the child to CCDCFS. From these findings

and order, appellant appeals, raising one assignment of error for review.

Law and Analysis

{¶ 9} In her sole assignment of error, appellant argues that the trial

court’s order granting permanent custody to CCDCFS was not based upon

sufficient clear and convincing evidence. We disagree.

Standard of Review

{¶ 10} A trial court’s authority to award permanent custody of a child to

the state arises under R.C. 2151.414. Under the statute, the court is

required to grant permanent custody of a child to the state if it determines, by

clear and convincing evidence, that: (1) the grant of permanent custody to

the agency is in the best interest of the child, utilizing, in part, the factors

enumerated in R.C. 2151.414(D); and (2) the child cannot be placed with

either parent within a reasonable time or should not be placed with either

parent, pursuant to at least one of the factors listed in R.C. 2151.414(E).

{¶ 11} Clear and convincing evidence is “that measure or degree of proof

which is more than a mere ‘preponderance of the evidence’ but not to the

extent of such certainty required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” In re Awkal (1994), 95

Ohio App.3d 309, 315, 642 N.E.2d 424, citing Lansdowne v. Beacon Journal

Pub. Co. (1987), 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979.

{¶ 12} Where clear and convincing proof is required at trial, a reviewing

court will examine the record to determine whether the trier of fact had

sufficient evidence before it to satisfy the requisite degree of proof. In re

T.S., Cuyahoga App. No. 92816, 2009-Ohio-5496, ¶24, citing State v. Schiebel

(1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54. Judgments supported by

competent, credible evidence going to all the essential elements of the case

will not be reversed as being against the manifest weight of the evidence. Id.

{¶ 13} Thus, we must look to the entire record to determine whether the

trial court had sufficient evidence to clearly and convincingly find that it was

in E.D.’s best interest to place her in the permanent custody of CCDCFS and

that she could not or should not be placed with appellant within a reasonable

period of time. After a thorough review of the evidence, we conclude that the

trial court’s judgment was based on sufficient evidence.

Best Interest Determination

{¶ 14} In considering an award of permanent custody, the court must

first determine whether, by clear and convincing evidence, it is in the best

interest of the child to grant permanent custody. R.C. 2151.414(D). In

determining the best interest of the child during the permanent custody hearing, the court must consider the factors listed in R.C. 2151.414(D), which

include the reasonable probability the child will be adopted; the interaction of

the child with parents, siblings, and foster parents; the wishes of the child;

the custodial history of the child; and the child’s need for a legally secure

permanent placement.

{¶ 15} R.C. 2151.414(D) does not require the juvenile court to find that

each best interest factor applies, only that it consider each one. In re

Shaeffer Children (1993), 85 Ohio App.3d 683, 621 N.E.2d 426. One factor

enumerated in R.C. 2151.414(D) is not given greater weight than the others.

Id. at ¶56. This court has “consistently held that only one of the factors set

forth in R.C. 2151.414(D) needs to be resolved in favor of the award of

permanent custody in order for the court to terminate parental rights.” In re

Z.T., Cuyahoga App. No. 88009, 2007-Ohio-827, ¶56; see, also, In re P.C.,

Cuyahoga App. Nos. 90540 and 90541, 2008-Ohio-3458, ¶31, citing In re C.H.,

Cuyahoga App. Nos. 82258 and 82852, 2003-Ohio-6854, ¶34.

{¶ 16} R.C. 2151.414(D)(1)(a) deals with the interaction and

interrelationship of the child with various significant individuals in the

child’s life, including parents, siblings, relatives, and foster care givers. At

the evidentiary hearing, the court accepted evidence that the child had

resided with her foster parents since she was seven days old, was attached to

her care givers, and was thriving under their supervision. Further, the

child’s guardian ad litem expressed to the court that he believed permanent custody was in the child’s best interest and testified that the foster parents

provided the child with a loving home and had expressed their interests in

adopting her.

{¶ 17} In light of the interaction and interrelationship the foster parents

shared with E.D., coupled with the recommendation of her guardian ad litem,

the grant of permanent custody based on the child’s best interests was

supported by clear and convincing evidence under this section.

{¶ 18} Pursuant to R.C. 2151.414(D)(1)(c), the trial court is to consider

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 placement agencies for 12 or more months of a consecutive 22-month

period. The record reflects that E.D. was removed from appellant’s care on

January 9, 2009. Thereafter, a dispositional proceeding on CCDCFS’s

motion for permanent custody was held on October 14, 2010. At the time of

that hearing, the child had been in CCDCFS’s custody for one year, nine

months, and five days. Sufficient evidence was therefore presented for the

trial court to have concluded that permanent custody was in the child’s best

interest in light of the child’s custodial history under this section.

{¶ 19} R.C. 2151.414(D)(1)(d) considers the child’s need for a legally

secure placement and whether such can be achieved without a grant of

permanent custody. In this case, CCDCFS developed a case plan specifically

for appellant with the ultimate goal being reunification. However, Goodwin testified that appellant failed to complete the goals outlined in the case plan.

As stated by the trial court, “[t]he 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.”

{¶ 20} In light of appellant’s continuous and repeated failure to remedy

the conditions causing the child to be placed outside of her home, it was not

an abuse of discretion for the trial court to have determined that the child

could not achieve a legally secure permanent placement without a grant of

permanent custody to CCDCFS.

{¶ 21} Upon our review of the record, we find that the trial court

weighed all relevant factors enumerated in R.C. 2151.414(D) and properly

concluded that permanent custody was in the best interests of the child. The

trial court’s judgment was based on clear and convincing evidence and did not

constitute an abuse of discretion.

Placement with Either Parent

{¶ 22} Next, the trial court was required to determine whether the child

could not or should not be placed with appellant within a reasonable period of

time. This analysis is guided by R.C. 2151.414(E), which sets forth 16

factors that the court may consider in its determination. It provides that if

the trial court finds by clear and convincing evidence that any of the 16

factors exists, the court must enter a finding that the child cannot or should not be placed with either parent within a reasonable period of time. In re

P.C., ¶19.

{¶ 23} In the instant case, after considering the evidence and the report

of the child’s guardian ad litem, the trial court found by clear and convincing

evidence that the child could not and should not be placed with appellant

within a reasonable period of time pursuant to R.C. 2151.414(E)(1)-(2), (4).

{¶ 24} After careful review of the record, we find that there was ample

evidence to support the trial court’s finding. As discussed, the testimony

presented at trial established that CCDCFS developed a case plan with

appellant with the goal of reuniting her with E.D. upon successful completion

of the case plan. Under the case plan, appellant was required to comply with

mental health treatment recommendations; attend parenting education

classes; obtain safe and appropriate housing; and demonstrate an ability to

provide for the child’s basic needs. However, appellant failed to show

consistency in following treatment and medical recommendations; failed to

attend parenting education classes; and, at the time of the permanent custody

trial, appellant was residing with an individual who had been indicted on 35

counts of sexually oriented charges against a child. Ultimately, appellant

was unable to successfully comply with the standards developed in her case

plan.

{¶ 25} Further, the record indicates that appellant has had five other

children removed from her care due to her mental health issues and inability to appropriately parent. Four of those children were committed to the

permanent custody of CCDCFS, and one was committed to the legal custody

of that child’s father. At the time of the evidentiary hearing, appellant failed

to establish that, notwithstanding her prior parental terminations, she was

capable of providing legally secure permanent placement and adequate care

for the health, welfare, and safety of E.D.

{¶ 26} Collectively, the evidence presented at the evidentiary hearing

was sufficient to support the trial court’s ruling that the child could not be

placed with appellant within a reasonable time.

{¶ 27} Finding no error in the trial court’s grant of permanent custody to

CCDCFS, appellant’s sole assignment of error is overruled.

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 be sent to said court 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.

FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR