In re J.S.

2022 Ohio 4517

Opinion

[Cite as In re J.S., 2022-Ohio-4517.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.S. : : No. 111643 A Minor Child : : [Appeal by V.G., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 15, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD20904682

Appearances:

Edward F. Borkowski, Jr., for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

FRANK DANIEL CELEBREZZE, III, J.:

Appellant V.G. (“Mother”) appeals the decision of the Cuyahoga County

Juvenile Court terminating her parental rights and awarding custody of her minor

child, J.S., to the Cuyahoga County Department of Children and Family Services

(“CCDCFS” or “agency”). After a thorough review of the law and applicable facts, we

affirm the judgment of the juvenile court. I. Factual and Procedural History

CCDCFS first became involved in this matter in May 2020 when

Mother had a mental health crisis that caused her to be hospitalized. Mother was

unable to make a safety plan, so J.S. was brought into agency custody.1

A case plan was created for Mother with the goal of reunification with

J.S. The case plan included services for mental health, basic needs, including

housing and employment, domestic violence, and substance abuse. R.S., the father

of a sibling of J.S., was included on the case plan because he was believed to still be

residing with Mother. His objectives included services to address his issues with

mental health, domestic violence, employment, and basic needs. During the

pendency of the case for J.S.’s sibling, R.S. failed to demonstrate the ability to

provide appropriate care for his child, who ultimately was placed in the legal custody

of a relative.

The agency moved to modify temporary custody to permanent custody

on October 5, 2021. The agency filed the motion because Mother had failed to

complete her case plan services and substantially remedy the conditions that caused

the removal of J.S.

The juvenile court held a hearing on the motion on May 10, 2022.

Caprisha Sinkfield, an extended services worker for the agency, testified at the

1 J.S.’s father, S.S. (“Father”), did engage with the agency and last saw J.S. during a virtual visit in March 2021. He is not a party to this appeal. hearing. Sinkfield was not the initial worker on the case but was assigned in August

2020.

The mental health aspect of the case plan provided for a mental health

assessment and psychiatric services. Sinkfield testified that at the time of trial,

Mother was completing her appointments and following recommendations,

although she noted that there had been a few gaps in services. A psychiatric

assessment was completed in January 2022, which recommended that Mother

continue to see her counselor and take her prescribed medication.

The services for substance abuse were later removed because Mother

underwent random drug screens that were negative and had an alcohol and drug

assessment that yielded no recommendations.

Mother resided in Pennsylvania during a portion of the time this matter

was pending but moved back to Cleveland in approximately April 2021. Sinkfield

testified that at the time of trial, Mother was leasing a home that was deemed

appropriate for children. Mother had maintained that she had resided in her home

since September 2021. Sinkfield was able to confirm with the landlord that Mother

had been residing there, but he could not provide a signed lease. Mother did not

provide a signed lease to the agency until just prior to trial. When Sinkfield visited

the home, she noted that Mother had appropriate furniture and all the necessary

kitchen utilities. Further, on Sinkfield’s initial check, she confirmed that Mother

had sufficient food in the home and that the home had working utilities. However, there was a concern that Mother’s former paramour, R.S.,

was also listed as a resident on the lease. This concerned the agency because there

was a history of domestic violence between Mother and R.S. In particular, there was

a domestic violence complaint filed against R.S. in January 2021. R.S. was charged

with felonious assault and domestic violence and a protection order had been issued.

The case was dismissed in November 2021 when Mother did not attend the trial.

Mother was referred to Able Counseling for domestic violence classes,

which she completed in March 2022. It was reported to Sinkfield that Mother was

engaged throughout the course. Sinkfield testified that the domestic violence

portion of the case plan was completed, but the concern remained since Mother was

still residing with R.S. Mother asserted that she had made false allegations against

R.S. and maintained that she did not have a problem with domestic violence.

With regard to employment, Mother provided two pay stubs to

Sinkfield prior to trial. She had started a new job in April 2022. Prior to that, Mother

had not provided any proof of employment. Mother had reported working at temp

agencies and Firehouse Subs but had never provided pay stubs from any other

employer. Mother was unemployed from January 2022 to April 2022 but had told

Sinkfield that she was on medical leave due to a foot injury. Mother did not provide

proof of the injury or the medical leave, but Sinkfield did see a cast on Mother’s foot.

Sinkfield testified that Mother has still not shown stability in employment because

she had only had her job for a month prior to trial. Sinkfield testified that J.S. had been placed with a relative caregiver, a

maternal aunt, in August 2020. J.S. was doing well in the home with no behavioral

concerns. This relative was willing to be a permanent placement for her; however,

there was another caregiver, J.S.’s maternal uncle, that the agency was looking into

first.

Father was scheduled for weekly supervised visits, but he would either

cancel or not show. His last visit with J.S. was a virtual visit in March 2021.

Mother had weekly visits with J.S. that were supervised by Sinkfield,

but she had not attended these visits since March 28, 2022. She had told Sinkfield

that she had been unable to visit due to a work schedule conflict. Sinkfield asked

Mother to let her know what days coordinated with her work schedule, but Mother

failed to do so. Between March 28, 2022, and the time of trial, Mother had two

virtual visits supervised by the relative caregiver. Sinkfield testified that J.S. looked

forward to her visits with Mother and became very upset when a visit was canceled

in early March.

Sinkfield stated that she believed it would be in J.S.’s best interest for

permanent custody to be awarded to the agency “due to the history of the case,”

which included inconsistency with housing, employment, and visitation. She stated

that she did not believe that J.S. would be in a good environment by reuniting with

Mother, particularly since Mother was still in a relationship with R.S.

The guardian ad litem (“GAL”) also provided his recommendation to

the court. He stated that he had been involved with the family for some time and had previously represented J.S. and her older sibling J.N., who is a teenager, in

2018. At that time, J.S. and her sibling had been removed from Mother’s care due

in part to issues with Mother’s mental health. They were later reunified with Mother

under an order of protective supervision by CCDCFS. This order was terminated in

February 2020. J.N. is not a part of this appeal and is presently in the legal custody

of her maternal grandmother.

The GAL stated that J.S. attended all-day kindergarten and was doing

well there. She has no behavioral or mental health issues.

The GAL testified that he visited Mother in her home in October 2021,

and R.S. was present. During this visit, the GAL advised Mother and R.S. that they

should not be together because R.S. was violating a court-ordered protection order

and risked arrest if he was found with Mother. Mother stated that she had made a

false report about being assaulted. The GAL noted in his report that R.S. had

previously been convicted of domestic violence. He also visited Mother’s home in

March 2022, and R.S. was not present at the time. Mother told the GAL that R.S.

was back in Pennsylvania. It is evident from the transcript that R.S. was present at

the hearing on the motion for permanent custody.

The GAL stated that his major concern was preventing J.S. from being

exposed to domestic violence. He had spoken with the maternal uncle, whom the

agency was exploring as a permanent placement. The uncle resides in Arizona,

which Mother felt was too far away to have consistent visits. The GAL stated that he

believed that J.S. liked it out there and wanted to be with her uncle. The GAL ultimately stated that he believed permanent custody to the

agency was in J.S.’s best interest because there were “too many red flags in this case

here to reunite” J.S. with Mother.

Following the hearing, the court granted the motion for permanent

custody to CCDCFS and terminated Mother and Father’s parental rights. The court

found that J.S. had been in temporary custody of CCDCFS for twelve or more

months of a consecutive twenty-two-month period under R.C. 2151.414(B)(1)(d).

The court further found that J.S. could not or should not be placed with Mother or

Father under R.C. 2151.414(E), noting that Mother and Father had demonstrated a

lack of commitment to the child; that Father had abandoned the child; that J.S. had

been previously removed from Mother’s care; and that Mother had agreed with the

initial adjudication and disposition of temporary custody.

The juvenile court further found by clear and convincing evidence that

it was in the best interest of J.S. to be placed in the permanent custody of the agency.

Mother filed the instant appeal, raising one assignment of error for

our review:

The trial court abused its discretion by granting permanent custody of appellant’s child to CCDCFS against the manifest weight of the evidence.

II. Law and Analysis

The right to raise one’s own child is “‘an essential and basic civil

right.’” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In

re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a parent has a “‘fundamental liberty

interest’ in the care, custody, and management” of his or her child). However, this

right is not absolute. It is “‘always subject to the ultimate welfare of the child, which

is the polestar or controlling principle to be observed.’” In re L.D., 2017-Ohio-1037,

86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106,

391 N.E.2d 1034 (1979).

Because the termination of parental rights is “‘the family law

equivalent of the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga

No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-

Ohio-5368, 776 N.E.2d 485, ¶ 14, it is “an alternative of last resort.” In re Gill, 8th

Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when

necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and

101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645

N.E.2d 812 (9th Dist.1994). “‘All children have the right, if possible, to parenting

from either natural or adoptive parents which provides support, care, discipline,

protection and motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio

App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are

terminated, the goal is to create “a more stable life for the dependent children” and

to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing

In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860,

5 (Aug. 1, 1986). 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. Before a juvenile court can terminate parental rights and grant permanent

custody of a child to CCDCFS, it must satisfy the two-prong test set forth in R.C.

2151.414. First, the juvenile court must find by clear and convincing evidence that

one of the following conditions set forth in R.C. 2151.414(B)(1)(a) through (e) exists:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, 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, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.

(d) 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. (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.

In the instant matter, the juvenile court determined that the child had

been in temporary custody of the agency for 12 or more months of a consecutive

twenty-two-month period. Mother does not challenge that finding.

Because the juvenile court found clear and convincing evidence to

support a finding under R.C. 2151.414(B)(1)(d), it was not required to make any

other finding under R.C. 2151.414(B). Nevertheless, the juvenile court made an

alternative finding pursuant to R.C. 2151.414(B)(1)(a) and found by clear and

convincing evidence that the child cannot be placed with one of the child’s parents

within a reasonable period of time and should not be placed with either parent.

Mother challenges this determination. Though not required, we shall address her

argument.

For this finding, R.C. 2151.414(E) enumerates 15 factors for the trial

court to consider. In this case, the trial court found the presence of R.C.

2151.414(E)(4), (10), and (16) factors. R.C. 2151.414(E) states, in relevant part:

(E) In determining * * * whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence * * * that one or more of the following exist as to each of the child’s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:

*** (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;

***

(10) The parent has abandoned the child.

(16) Any other factor the court considers relevant.

The juvenile court determined that both parents had demonstrated a

lack of commitment to J.S. by failing to regularly support, visit, or communicate with

her or by other actions demonstrating an unwillingness to provide an adequate

permanent home for her. We find that there is competent credible evidence to

support this finding. Mother had been inconsistent in her visits with the child,

particularly in the time leading up to trial. There was also evidence in the record

that Mother had continued her relationship with R.S., despite past domestic

violence. “While a parent ‘[has] the right to associate freely with whom they choose,’

this right ‘must become subordinate to the best interests of the children’ in the

context of permanent custody determinations.” In re V.S., 8th Dist. Cuyahoga No.

109966, 2021-Ohio-1818, ¶ 21, quoting In re Holyak, 8th Dist. Cuyahoga No. 78890,

2001 Ohio App. LEXIS 3105, 11 (July 12, 2001).

While not relevant to the instant appeal, the juvenile court found

under R.C. 2151.414(E)(10) that Father had abandoned the child. He had last seen

J.S. by virtual visit in March 2021. The trial court further considered other factors under R.C.

2151.414(E)(16), including that J.S. had previously been removed from Mother’s

care and that Mother was in agreement with the initial adjudication and disposition

of temporary custody. We find that the record supports these factors, and Mother

does not argue otherwise.

Pursuant to R.C. 2151.414(E), if the court determines, by clear and

convincing evidence, that one or more of the (E)(1)-(15) factors exist, the court shall

enter a finding that the child cannot be placed with either parent within a reasonable

time or should not be placed with either parent. See, e.g., In re I.R., 2021-Ohio-

3103, 179 N.E.3d 138, ¶ 69 (8th Dist.) (based on its findings under R.C. 2151.414(E),

the juvenile court was required to find that the child could not be placed with either

of his parents within a reasonable time or should not be placed with either parent),

citing In re C.H., 8th Dist. Cuyahoga Nos. 82258 and 82852, 2003-Ohio-6854, ¶ 58.

Because our review reflects clear and convincing evidence relating to the above

factors, the trial court properly found that J.S. cannot be placed with either parent

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

Once the first prong is met, the juvenile court must find by clear and

convincing evidence that granting permanent custody to the agency is in the best

interest of the child. R.C. 2151.414(B)(1). “Clear and convincing evidence” is that

measure or degree of proof that “produce[s] in the mind of the trier of fact a firm

belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, at ¶ 8. A juvenile 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 A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

We review a juvenile court’s determination of a child’s best interest

under R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No.

95188, 2010-Ohio-5618, ¶ 47. 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).

In determining the best interest of a child at a hearing held pursuant

to R.C. 2151.414(A)(1), the juvenile court must consider all relevant factors,

including, but 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.

R.C. 2151.414(D)(1).

A juvenile court is required to consider each relevant factor under R.C.

2151.414(D)(1) in making a determination regarding permanent custody, but

“[t]here 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. This court has previously stated that only one of these enumerated factors

needs to be resolved in favor of the award of permanent custody. In re Moore, 8th

Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In

re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Further,

the Supreme Court of Ohio has clarified that “R.C. 2151.414(D)(1) does not require

a juvenile court to expressly discuss each of the best-interest factors in R.C.

2151.414(D)(1)(a) through (e). Consideration is all the statute requires.” In re A.M.,

166 Ohio St.3d 127, 2020-Ohio-5102, 184 N.E.3d 1, ¶ 31.

Here, the trial found permanent custody to be in the child’s best

interest after its consideration of (a) the interaction and interrelationship with her

parents, siblings, relatives, and foster parents, (b) the wishes of the child, (c) the

child’s custodial history, (d) the child’s need for a legally secure permanent

placement, and (e) the report of the GAL. Our review of the record supports the

court’s determination. R.C. 2151.414(D)(1)(a) relates to the interaction and interrelationship

of the child with various significant individuals in the child’s life, including parents,

siblings, relatives, and foster caregivers. The record demonstrates that J.S. had been

placed with relatives, was able to regularly see her sister (who is in legal custody of

relatives), and was excelling in school.

Further, Mother’s visits had become inconsistent; while she claimed

that the visits conflicted with her work schedule, there was no evidence that she

attempted to reschedule the visitation. There was testimony that Mother and J.S.

had a good relationship; however, this court has recognized that the best interest of

the child requires permanency and a safe, secure environment, and the mere

existence of a good relationship is insufficient. In re K.M., 8th Dist. Cuyahoga No.

95374, 2011-Ohio-349, ¶ 23.

Under R.C. 2151.414(D)(1)(b), the juvenile court was to consider the

child’s wishes as expressed directly or through her GAL. At the time of trial, J.S. was

five years old and wished to live with a family member in Arizona. The GAL stated

that he did not believe that J.S. understood the concept of the distance between Ohio

and Arizona but acknowledged that the Arizona location may be the best possible

place for her. The GAL recommended permanent custody to CCDCFS, in order to

prevent J.S. from being exposed to domestic violence. He stated that permanent

custody to the agency was in J.S.’s best interest because there were “too many red

flags in this case here to reunite.” R.C. 2151.414(D)(1)(c) relates to the child’s custodial history. At the

time of trial, J.S. had been in the custody of the agency for two years and it was the

second time she was in agency custody.

R.C. 2151.414(D)(1)(d) relates to the child’s need for a legally secure

placement and whether that can be achieved without a grant of permanent custody.

The trial court found that J.S. deserved a safe and stable environment where she can

thrive and her needs can be met. The court further found that factors existed under

R.C. 2151.414(E), as discussed above, and consequently found that J.S. cannot be

placed with one of her parents within a reasonable time or should not be placed with

either parent. “‘Once a court determines, by clear and convincing evidence, that one

of the enumerated factors exists, the court must enter a finding that the child cannot

or should not be placed with either of [her] parents within a reasonable time.’” In

re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-4126, ¶ 43, quoting In re Glenn,

139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th Dist.2000).

Mother argues that she had made significant progress on her case plan

and was able to provide a secure placement for her child. This court has noted that

“[t]he case plan is simply a means to a goal, but not the goal itself. Hence, the courts have held that the successful completion of case plan requirements does not preclude a grant of permanent custody to a social services agency. In re J.L., 8th Dist. [Cuyahoga No. 84368, 2004-Ohio-6024, ¶ 20; In re Mraz, 12th Dist. Brown Nos. CA2002-05- 011 and CA2002-07-014, 2002-Ohio-7278.]”

In re S.P., 8th Dist. Cuyahoga No. 111081, 2022-Ohio-2277, ¶ 38, quoting In re C.C.,

187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th Dist.). Under R.C. 2151.414(D)(1)(e), the juvenile court was to consider

whether any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 applied in

relation to Mother and the child. Although not relevant to Mother’s appeal, the trial

court determined that R.C. 2151.414(E)(10) applied in that Father had abandoned

J.S. None of the factors appear to have been applicable to this matter and Mother

The above-mentioned findings were all supported by the testimony

presented at trial; thus, the juvenile court’s decision was based upon competent and

credible evidence. We find that the juvenile court did not abuse its discretion in

determining that permanent custody was in the best interest of J.S., and this

decision was not against the manifest weight of the evidence. Mother’s sole

assignment of error is overruled.

III. Conclusion

After thoroughly reviewing the entire record, we affirm the juvenile

court’s judgment granting permanent custody of J.S. to CCDCFS. The juvenile court

did not abuse its discretion, and its decision was not against the manifest weight of

the evidence. Mother’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 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.

_________________________________ FRANK DANIEL CELEBREZZE, III, JUDGE

ANITA LASTER MAYS, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR