[Cite as In re J.N.H., 2013-Ohio-1803.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 99089, 99090, and 99091
IN RE: J.N.H., E.H., AND A.H.
Minor Children
[Appeal by C.H., Mother]
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 12904755, AD 12904756, and AD 12904757
BEFORE: Kilbane, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: May 2, 2013 ATTORNEY FOR APPELLANT
Gregory T. Stralka 6509 Brecksville Road P.O. Box 31776 Independence, Ohio 44131
ATTORNEYS FOR APPELLEES
For C.C.D.C.F.S.
Timothy J. McGinty Cuyahoga County Prosecutor Rachel Eisenberg Assistant County Prosecutor C.C.D.C.F.S. 8111 Quincy Avenue Cleveland, Ohio 44104
Guardians Ad Litem
David S. Bartos 20220 Center Ridge Road Suite 320 Rocky River, Ohio 44116
Thomas B. Robinson P.O. Box 690 Newbury, Ohio 44065 MARY EILEEN KILBANE, J.:
{¶1} Appellant-mother, C.H., the mother of J.N.H., E.H., and A.H., appeals from
the order of the juvenile court that awarded permanent custody of these children to the
Cuyahoga County Department of Children and Family Services (“CCDCFS”). For the
reasons set forth below, we affirm.
{¶2} E.H. was born on June 19, 2003. J.N.H. was born on March 28, 2004. In
May 2004, appellant was convicted of child endangering in the Cleveland Heights
Municipal Court. In December 2004, appellant was charged with a felony count of
endangering children. E.H. and J.N.H. were subsequently adjudicated neglected and/or
dependent and were placed in the temporary custody of CCDCFS from 2004 to 2006.
{¶3} E.H. and J.N.H. were reunited with appellant; however, in 2007, the
children were again adjudicated neglected and/or dependent and placed in the custody of
CCDCFS.
{¶4} In December 2009, E.H. and J.N.H. were again reunited with appellant with
protective supervision. A.H. was born on December 30, 2009. On April 19, 2010, all
three children were committed to the emergency custody of CCDCFS, after appellant was
sentenced to one year of incarceration for failing to complete the terms of community
control imposed in connection with the conviction for felony child endangering.
{¶5} On April 11, 2011, appellant was released from incarceration. In
December 2011, appellant was sentenced to probation in connection with an assault
conviction. That same month, appellant sent another individual to take a court-ordered drug test for her. In February 2012, appellant attempted to commit suicide by taking an
overdose of Depakote. Also in February 2012, appellant was federally indicted for
passing counterfeit money.
{¶6} On March 20, 2012, CCDCFS filed a complaint for permanent custody of
all three children, and a guardian ad litem (“GAL”) was appointed for them. The matter
proceeded to a hearing on June 15, 2012, as to the neglect and dependency allegations.
CCDCFS, through social worker Alisa Davis (“Davis”), outlined appellant’s struggles
with parenting her children. Davis also testified that the father of E.H. has not been
consistent with visiting his child; the father of A.H. is incarcerated, has an extensive
record for drug-related offenses and has not visited his child; and the putative father for
J.N.H. could not be located. At the conclusion of the hearing, appellant stipulated to the
allegations of CCDCFS, but did not stipulate to the findings of neglect or dependency and
did not concur with the prayer for permanent custody.
{¶7} On June 6, 2012, the GAL recommended that the trial court award
permanent custody of the children to CCDCFS. The GAL noted that appellant admitted
that she had made three suicide attempts and has convictions for burglary, assault, and
child endangering. The GAL expressed concerns about the children’s interactions with
appellant, and noted that A.H.’s current placement in foster care is very appropriate, and
that E.H. and J.N.H. are placed with a relative of E.H.’s father in Pennsylvania, who is
willing to adopt them.
{¶8} The trial court held a disposition hearing on July 27, 2012. At this hearing, Davis provided testimony for CCDCFS and submitted numerous exhibits for the trial
court’s consideration. The evidence indicated that appellant has not completed the steps
of her case plan or benefitted from services offered to her, despite the attempts of
CCDCFS. She has bipolar disorder, depression, and substance abuse issues. She has
experienced hallucinations and has made several suicide attempts. The evidence
demonstrated that appellant has not addressed her mental health issues and has not
completed drug treatment during the two years that the children were in temporary
custody. She tested positive at a drug screening, but stated that she sent another woman
to take the test for her. Appellant discharged herself from Recovery Resources, stating
that she would “smack the f—” out of someone if she were not currently on probation.
{¶9} The evidence further indicated that appellant does not have a bond with
J.N.H. The county has made various efforts to locate the putative father of this child but
has been unable to do so. Appellant has a bond with E.H. Paternity has been established
for E.H., but his father has multiple drug-related convictions and does not consistently
visit with him. E.H. and J.N.H. are in foster care in Pennsylvania with E.H.’s father’s
cousin who wishes to adopt both of these children. E.H. has stated that he is happy in his
foster placement.
{¶10} A.H. has an adjustment disorder, and engages in negative attention-seeking
behaviors. Appellant did not consistently take the parenting education classes offered to
her.
{¶11} Appellant did not testify and did not present any exhibits. {¶12} In a journal entry dated September 21, 2012, the trial court adopted the
findings of fact and conclusions of law submitted by CCDCFS and the GAL. The trial
court found that, notwithstanding the diligent efforts of CCDCFS in assisting appellant
to remedy the problems causing the children to be placed outside the home, appellant
failed continuously and repeatedly to substantially remedy those conditions and
demonstrated a lack of commitment to provide an adequate permanent home for the
children. In relevant part, the court noted that appellant has child endangering
convictions, has not completed case plan services, continued to display inappropriate
parenting, and has failed to demonstrate sobriety. The court then found that the children
had been in predispositional temporary custody for over two years, the children cannot or
should not be placed with a parent within a reasonable time, and that one or more factors
of R.C. 2151.414(E) were established, and there was clear and convincing evidence to
establish that the award of permanent custody to CCDCFS is in the best interest of the
children.
{¶13} Appellant raises the following error for our review:
[CCDCFS] failed to establish that Appellant failed to substantially remedy the conditions that caused the removal of the children.
{¶14} 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 A.S., 11th Dist. Nos. 2012-L-058 and 2012-L-059,
2012-Ohio-4893.
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[Cite as In re J.N.H., 2013-Ohio-1803.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 99089, 99090, and 99091
IN RE: J.N.H., E.H., AND A.H.
Minor Children
[Appeal by C.H., Mother]
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 12904755, AD 12904756, and AD 12904757
BEFORE: Kilbane, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: May 2, 2013 ATTORNEY FOR APPELLANT
Gregory T. Stralka 6509 Brecksville Road P.O. Box 31776 Independence, Ohio 44131
ATTORNEYS FOR APPELLEES
For C.C.D.C.F.S.
Timothy J. McGinty Cuyahoga County Prosecutor Rachel Eisenberg Assistant County Prosecutor C.C.D.C.F.S. 8111 Quincy Avenue Cleveland, Ohio 44104
Guardians Ad Litem
David S. Bartos 20220 Center Ridge Road Suite 320 Rocky River, Ohio 44116
Thomas B. Robinson P.O. Box 690 Newbury, Ohio 44065 MARY EILEEN KILBANE, J.:
{¶1} Appellant-mother, C.H., the mother of J.N.H., E.H., and A.H., appeals from
the order of the juvenile court that awarded permanent custody of these children to the
Cuyahoga County Department of Children and Family Services (“CCDCFS”). For the
reasons set forth below, we affirm.
{¶2} E.H. was born on June 19, 2003. J.N.H. was born on March 28, 2004. In
May 2004, appellant was convicted of child endangering in the Cleveland Heights
Municipal Court. In December 2004, appellant was charged with a felony count of
endangering children. E.H. and J.N.H. were subsequently adjudicated neglected and/or
dependent and were placed in the temporary custody of CCDCFS from 2004 to 2006.
{¶3} E.H. and J.N.H. were reunited with appellant; however, in 2007, the
children were again adjudicated neglected and/or dependent and placed in the custody of
CCDCFS.
{¶4} In December 2009, E.H. and J.N.H. were again reunited with appellant with
protective supervision. A.H. was born on December 30, 2009. On April 19, 2010, all
three children were committed to the emergency custody of CCDCFS, after appellant was
sentenced to one year of incarceration for failing to complete the terms of community
control imposed in connection with the conviction for felony child endangering.
{¶5} On April 11, 2011, appellant was released from incarceration. In
December 2011, appellant was sentenced to probation in connection with an assault
conviction. That same month, appellant sent another individual to take a court-ordered drug test for her. In February 2012, appellant attempted to commit suicide by taking an
overdose of Depakote. Also in February 2012, appellant was federally indicted for
passing counterfeit money.
{¶6} On March 20, 2012, CCDCFS filed a complaint for permanent custody of
all three children, and a guardian ad litem (“GAL”) was appointed for them. The matter
proceeded to a hearing on June 15, 2012, as to the neglect and dependency allegations.
CCDCFS, through social worker Alisa Davis (“Davis”), outlined appellant’s struggles
with parenting her children. Davis also testified that the father of E.H. has not been
consistent with visiting his child; the father of A.H. is incarcerated, has an extensive
record for drug-related offenses and has not visited his child; and the putative father for
J.N.H. could not be located. At the conclusion of the hearing, appellant stipulated to the
allegations of CCDCFS, but did not stipulate to the findings of neglect or dependency and
did not concur with the prayer for permanent custody.
{¶7} On June 6, 2012, the GAL recommended that the trial court award
permanent custody of the children to CCDCFS. The GAL noted that appellant admitted
that she had made three suicide attempts and has convictions for burglary, assault, and
child endangering. The GAL expressed concerns about the children’s interactions with
appellant, and noted that A.H.’s current placement in foster care is very appropriate, and
that E.H. and J.N.H. are placed with a relative of E.H.’s father in Pennsylvania, who is
willing to adopt them.
{¶8} The trial court held a disposition hearing on July 27, 2012. At this hearing, Davis provided testimony for CCDCFS and submitted numerous exhibits for the trial
court’s consideration. The evidence indicated that appellant has not completed the steps
of her case plan or benefitted from services offered to her, despite the attempts of
CCDCFS. She has bipolar disorder, depression, and substance abuse issues. She has
experienced hallucinations and has made several suicide attempts. The evidence
demonstrated that appellant has not addressed her mental health issues and has not
completed drug treatment during the two years that the children were in temporary
custody. She tested positive at a drug screening, but stated that she sent another woman
to take the test for her. Appellant discharged herself from Recovery Resources, stating
that she would “smack the f—” out of someone if she were not currently on probation.
{¶9} The evidence further indicated that appellant does not have a bond with
J.N.H. The county has made various efforts to locate the putative father of this child but
has been unable to do so. Appellant has a bond with E.H. Paternity has been established
for E.H., but his father has multiple drug-related convictions and does not consistently
visit with him. E.H. and J.N.H. are in foster care in Pennsylvania with E.H.’s father’s
cousin who wishes to adopt both of these children. E.H. has stated that he is happy in his
foster placement.
{¶10} A.H. has an adjustment disorder, and engages in negative attention-seeking
behaviors. Appellant did not consistently take the parenting education classes offered to
her.
{¶11} Appellant did not testify and did not present any exhibits. {¶12} In a journal entry dated September 21, 2012, the trial court adopted the
findings of fact and conclusions of law submitted by CCDCFS and the GAL. The trial
court found that, notwithstanding the diligent efforts of CCDCFS in assisting appellant
to remedy the problems causing the children to be placed outside the home, appellant
failed continuously and repeatedly to substantially remedy those conditions and
demonstrated a lack of commitment to provide an adequate permanent home for the
children. In relevant part, the court noted that appellant has child endangering
convictions, has not completed case plan services, continued to display inappropriate
parenting, and has failed to demonstrate sobriety. The court then found that the children
had been in predispositional temporary custody for over two years, the children cannot or
should not be placed with a parent within a reasonable time, and that one or more factors
of R.C. 2151.414(E) were established, and there was clear and convincing evidence to
establish that the award of permanent custody to CCDCFS is in the best interest of the
children.
{¶13} Appellant raises the following error for our review:
[CCDCFS] failed to establish that Appellant failed to substantially remedy the conditions that caused the removal of the children.
{¶14} 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 A.S., 11th Dist. Nos. 2012-L-058 and 2012-L-059,
2012-Ohio-4893.
{¶15} In order to terminate parental rights and grant permanent custody to CCDCFS, the court must apply a two-prong test. First, the court must find by clear and
convincing evidence one of the factors set forth in R.C. 2151.414(B)(1). Second, the
court must determine, by clear and convincing evidence, that it is in the best interest of
the child to terminate parental rights. R.C. 2151.414(B)(2); In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 23.
{¶16} The factors under R.C. 2151.414(B)(1) include the following: (a) the child
cannot be placed with either parent within a reasonable period of time or should not be
placed with either parent; (b) the child is abandoned; (c) the child is orphaned and no
relatives are able to take permanent custody of the child; or (d) the child has been in the
temporary custody of one or more public or private children services agencies for 12 or
more months of a consecutive 22-month period. In addition, R.C. 2151.414(E) sets forth
the elements necessary to satisfy an R.C. 2151.414(B)(1)(a) determination, by clear and
convincing evidence, that the child cannot or should not be placed with his parents within
a reasonable time, and provides in relevant part:
(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. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
*** (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;
***
(16) Any other factor the court considers relevant.
{¶17} The existence of one factor alone will support a finding that the child cannot
be reunified with the parents within a reasonable time. See In re William S., 75 Ohio
St.3d 95, 1996-Ohio-182, 661 N.E.2d 738; In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 50.
{¶18} With regard to the requirement that it is in the best interest of the child to
terminate parental rights, R.C. 2151.414(D)(1)(a) through (e) set forth the relevant factors
a court must consider in determining the best interest of the child and include, but are not
limited to, the following:
(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 * * *;
(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.
{¶19} Only one of these enumerated factors needs to be resolved in favor of the
award of permanent custody. In re D.W., 8th Dist. No. 98717, 2013-Ohio-272; In re
Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993); In re C.H., 8th
Dist. Nos. 82258 and 82852, 2003-Ohio-6854.
{¶20} In this case, the trial court found, by clear and convincing evidence that the
children have been in the temporary custody for over two years, and that they cannot be
placed with either parent within a reasonable period of time or should not be placed with
either parent. The court met the requirements of R.C. 2151.414(B)(1) and R.C.
2151.414(E). In relevant part, the court noted that appellant has child endangering
convictions, has not completed case plan services, continued to display inappropriate
parenting, and has failed to demonstrate sobriety. This finding is properly supported by
the clear and convincing evidence of record, and the mother did not present any evidence
to refute this evidence.
{¶21} Further, as required by R.C. 2151.414(D), the court concluded that it is in
the best interest of the children to terminate parental rights, and considered the children’s
interactions and interrelationship with appellant as well as their foster parents, the
extensive custodial history of the children, their need for a legally secure placement, and
whether that type of placement can be achieved without a grant of permanent custody.
The court determined, however, that notwithstanding the diligent efforts of CCDCFS in
assisting appellant to remedy the problems causing the children to be placed outside the home, appellant failed continuously and repeatedly to substantially remedy those
conditions, and demonstrated a lack of commitment to provide an adequate permanent
home for the children. Based upon all of the evidence of record, the juvenile court’s
termination of parental rights and award of permanent custody to CCDCFS is supported
by clear and convincing evidence. Accordingly, the termination of appellant’s parental
rights was not erroneous.
{¶22} The assignment of error is without merit.
{¶23} 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.
MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR