In re R.D.W.

2021 Ohio 4305

• Court: Ohio Court of Appeals
• Decided: December 9, 2021
• Docket: 110662
• Status: Published

Opinion

[Cite as In re R.D.W., 2021-Ohio-4305.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE R.D.W., ET AL. : No. 110662 Minor Children :

[Appeal by A.W., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 9, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19-907047, AD-19-907048, AD-19-907049 and AD-19-907050

Appearances:

Valore & Gordillo L.L.P. and Matthew O. Williams, for appellant.

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

EILEEN A. GALLAGHER, P.J.:

This appeal is from a permanent custody determination made by the

Juvenile Division of the Cuyahoga County Court of Common Pleas, which awarded

permanent custody to the Cuyahoga County Division of Children and Family

Services (“Agency”). A.W. (“Mother”) appeals that court’s decision and assigns two errors for our review. For the reasons set forth below, we overrule the assignments

of error and affirm the judgment of the trial court.

I. Factual Background and Procedural History

A. Agency Complaints and Case Plan for the Parents

Mother gave birth to four boys: R.D.W., Jo.W., Ja.W. and R.G.

R.D.W.’s father is R.G. Sr. (“Father”) who is also the alleged father of the two

youngest boys: Ja.W. and R.G. but he has yet to establish paternity for those two

children.

J.W. is the father of Jo.W. J.W. has not participated in the actions

below.

When Mother was giving birth to her youngest son,1 she tested

positive for cocaine and marijuana.

Because of the positive drug test, on June 5, 2019, the Agency filed

four complaints for abuse and neglect related to each of the children. R.D.W. in Case

No. AD-19-907047; Jo.W. in Case No. AD-19-907050; Ja.W. in Case No. AD-19-

907049; and R.G. in Case No. AD-19-907048. Along with the complaints, the

Agency moved for temporary custody.

At the time the Agency filed the complaints, Father had legal custody

of R.D.W. in connection with a previous juvenile complaint2 because mother could

1 Initially, R.G.’s complaint identified him as Z.W. However, prior to the permanent custody hearing, the Agency procured his birth certificate that identified his given name as R.G.

2 The Agency dismissed that complaint prior to filing the complaint in this action. not provide R.D.W. with stable housing. According to the complaint, Father was

abusing marijuana and R.D.W. had over 40 days of unexcused absences from

school. Further, Mother had a substance abuse problem with cocaine and marijuana

and did not have stable housing because she had resided at four different addresses

in the prior 18 months. Jo.W., like R.D.W., had multiple unexcused absences from

school.

The motion for temporary custody came for a hearing on June 6,

2019. Neither Mother nor Father appeared. The magistrate awarded emergency

temporary custody to the Agency following the hearing.

On August 8, 2019, Mother moved the court to grant temporary

custody to Paris Cole, a family friend. On August 14, 2019, Mother and Father

stipulated to the allegations of an amended complaint. Based on the stipulations,

the magistrate adjudicated the children as neglected and the Agency developed a

case plan.

Initially, the children were placed with a maternal cousin. However,

due to parental conflicts, the children were ultimately placed with Paris Cole, the

family friend mentioned above.

The case plan for Mother provided that she complete a parenting

program as well as a drug and alcohol assessment and then attend, participate and

successfully complete any recommended treatment. The case plan for Father was similar to that of Mother. Father was

required to attend and complete a parenting program, a drug and alcohol

assessment and establish paternity for the two youngest boys.

Mother completed a parenting program through Beech Brook on

February 4, 2020. Father also completed a parenting program and then filed a

motion for legal custody of R.D.W., Ja.W. and R.G. asserting that, because he had

completed his parenting referral, he had substantially complied with the

requirements of the case plan. Father never completed the drug or alcohol

assessment let alone any treatment and has yet to establish paternity for the two

youngest children.

On February 18, 2020, the Agency moved the court to modify

temporary custody to permanent custody. The affidavit attached to the motion avers

that Mother completed a substance abuse assessment and was recommended to

complete an intensive outpatient program. However, Mother failed to complete

treatment. She subsequently was referred for another substance abuse assessment

but failed to complete that treatment program, as well.

The Agency, due to unruly behavior of the parents at visits which

occurred in the presence of the children, amended the case plan and suspended

visitation until each parent completed an anger management course.

On March 1, 2021, Mother moved that the court award legal custody

to Yvonne McCoy, a family friend. B. Disposition Hearing

On June 14, 2021, the matter came for a dispositional hearing before

the magistrate at which time Mother’s motion for a continuance was denied. The

magistrate proceeded to hear testimony and found, by clear and convincing

evidence, that the children could not be placed with either Mother or Father.

At the hearing, the Agency produced two witnesses.

Jasmine Lynard testified that she was the social worker for the

children. She testified that the Agency had temporary custody of the children since

June 2019. She testified that Mother completed the parenting and anger

management referrals but, other than assessments, Mother did not successfully

complete any of the substance abuse treatment programs to which she was referred.

For substance abuse, the Agency referred Mother to New Visions,

Women’s Recovery, Hitchcock House and Community Assessment and Treatment

Services (“CATS”). Mother entered the intensive outpatient program at New Visions

but “stopped going” and did not complete treatment. Women’s Recovery likewise

assessed Mother for an intensive outpatient program, and Mother stopped going

without successfully completing that program. Mother then entered the inpatient

program at Hitchcock House but voluntarily left before completing that program.

Finally, Mother left the intensive inpatient treatment program at CATS just before

the dispositional hearing. Mother did not cooperate with drug-screen requests from the Agency.

She did, however, provide urine specimens for testing for New Visions and CATS.

Her urine specimens at CATS were positive for marijuana.

After Lynard’s testimony, the Agency called Dr. Sheila Ferguson to

testify. Dr. Ferguson is the director of community-based services at the Fatima

Center, which is operated by the Catholic Charities Corporation of Cleveland. This

is the location where the Agency scheduled many of the parental visits with the

children. Dr. Ferguson testified that Father and Mother clearly loved their children

and that the family “always had a great time together.” She also testified that Father

was occasionally “abusive with Mom in terms of name calling and blaming her as

the reason the kids were in care” and that these disparaging comments were made

in front of the children. She also testified, however, that Mother and Father acted

appropriately when they were interacting with the children.

The magistrate found that Mother had a chemical dependency that is

so severe that it makes her unable to provide an adequate permanent home for the

children and that Father similarly suffers from a chemical dependency.

Furthermore, while Mother began or completed some services, she did not complete

an intensive outpatient or inpatient treatment program despite numerous referrals.

Father only completed the referral for parenting and nothing else. Neither Mother

nor Father reliably provided urine screens to the Agency. Accordingly, the

magistrate granted the Agency’s motion for permanent custody. The trial court overruled the parent’s objections and adopted the magistrate’s decision on July 1,

2021.

II. Standard of Review

When proceeding via motion for permanent custody “the trial court

must find by clear and convincing evidence: (1) the existence of any one of the

conditions set forth in R.C. 2151.414(B)(1)(a) through (d) and (2) that granting

permanent custody to the agency is in the best interest of the child.” In re M.S.,

2015-Ohio-1847, 34 N.E.3d 420, ¶ 27 (8th Dist.). Appellant’s brief does not

challenge any finding under R.C. 2151.414(B).

[T]he juvenile court may “[c]ommit the child to the permanent custody of a public children services agency,” if the court determines (1) in accordance with R.C. 2151.414(E) 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 (2) in accordance with R.C. 2151.414(D)(1) that the permanent commitment is in the best interest of the child.

In re L.S., 2021-Ohio-510, 168 N.E.3d 149, ¶ 42 (8th Dist.), quoting R.C.

2151.414(C).

“Clear and convincing evidence” is 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.

In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing

In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing

Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512

N.E.2d 979 (1987). 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 M.S., 2015-Ohio-1847, at

¶ 18; see also In re J.F., 11th Dist. Trumbull No. 2011-T-0078, 2011-Ohio-6695, ¶ 67

(a permanent custody decision “‘based on clear and convincing evidence requires

overwhelming facts, not the mere calculation of future probabilities’”) (emphasis

omitted), quoting In re A.J., 11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553,

¶ 76.

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 is more than a mere error of

law or judgment; it 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). While a juvenile court’s discretion in a custody proceeding is broad, it is not

absolute. “A trial court’s failure to base its decision on a consideration of the best

interests of the child constitutes an abuse of discretion.” In re N.B., 8th Dist.

Cuyahoga No. 101390, 2015-Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga

No. 85845, 2005-Ohio-5446, ¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d

319, 574 N.E.2d 1055 (1991).

III. Analysis and Argument

Mother appeals from the determination of the trial court granting the

Agency’s motion for permanent custody and raises two assignments of error.

However, we overrule Mother’s assignments of error and affirm the judgment of the

trial court because the Ohio Revised Code prohibited any further extension of the temporary custody arrangement and there was competent, credible evidence that

there was no appropriate alternative to granting the Agency’s motion.

Assignment of Error No. 1: The trial court’s award of permanent custody and termination of appellant’s parental rights is against the manifest weight of the evidence.

Mother raises two arguments under this assignment of error. She

contends that trial court should have determined that granting the Agency’s motion

for permanent custody was not in the best interests of the children because there

were other potential custodians and Mother could have regained custody with only

“a little more time.”

Mother first contends that the trial court erred because she put

forward at least eight individuals as potential placements yet not a single

investigation took place. The Revised Code requires the trial court to consider the

appropriateness of placement with relatives or interested persons identified in a

motion for legal custody of the child. R.C. 2151.414(D)(2)(d). Further, the Revised

Code requires the trial court to consider whether “a legally secure permanent

placement * * * can be achieved without a grant of permanent custody to the

agency[.]” R.C. 2151.414(D)(1)(d).

Mother named Paris Cole and Yvonne McCoy as potential custodians.

Paris Cole was identified in a motion for temporary custody. Lynard testified that

she had not been able to talk with Yvonne McCoy and that the previous guardian ad

litem (“GAL”) stated that Yvonne McCoy said she was not able to take the children. The children were placed with an interested individual, but she ended up disrupting and then I did get a name from mom. I think that was another interested individual, but I reached out to her. We kind of played phone tag and then when I spoke with the GAL, the previous GAL, Mr. Miles, he did express to me that the interested individual stated that she couldn’t do it [any] more. So I haven’t had a conversation with her and that was the last person that was provided.

***

Q. And have you asked [M]other and/or [Father] about possible family placements for these children?

A. Yeah.

Q. And were they ever able to provide you with anything other than that last interested individual?

A. They provided a few people. Mom and provided — at one point in time she had mentioned her mom, she mentioned her sister, but the most recent was the interested individual that the children were placed with and then the lady that I played phone tag with earlier this year.

Q. Were any of those family members appropriate or willing to take placement or custody of these children?

A. No.

In context, the social worker testified that when Mother provided the

name of a potential custodian, the Agency then determined whether or not the

proposed custodian was appropriate. The social worker testified that some of the

individuals, when contacted, stated they could not take custody of the children, some

simply never responded to the social worker and one had an open case with the

Agency concerning her own children. Appellant complains that not a single investigation took place but

Lynard testified that none of the potential custodians ever progressed to the point

that a detailed investigation would have been warranted.

Thus, the trial court did not abuse its discretion in determining that

the best interests of the children supported placing the children in the permanent

custody of the Agency.

Second, Mother contends that the trial court erred in determining

that the children could not be placed with Appellant within a reasonable period of

time. Mother argues that she “had completed the majority of her case plan

objectives * * * all that she needed was a little more time.”

The Ohio Revised Code prohibits a trial court from continuing a

temporary placement of a parent for more than two years. R.C. 2151.353(G).

Here, the trial court granted the Agency’s motion for temporary

custody on June 6, 2019. The magistrate issued her judgment on June 16, 2021,

which is more than two years after the start of the temporary custody and the trial

court did not enter its judgment on the docket until July 1, 2021. Thus, the Ohio

Revised Code prevented the trial court from allowing any further extensions of the

temporary placement of the children.

Appellant contends that, because of the March 27, 2020 tolling order

issued by the Supreme Court of Ohio, the trial court had the authority to extend

temporary custody to the Agency to give her more time. This court has rejected the

application of the tolling order to the two-year limitation on temporary custody. “The two-year time limit is not a rule imposed by the Supreme Court of Ohio. Thus,

it is unaffected by the tolling order.” In re T.W., 8th Dist. Cuyahoga No. 109967,

2021-Ohio-2031, ¶ 47. Accordingly, the trial court did not err in determining that

R.C. 2151.353(G) provided that “the court shall not order an existing temporary

custody order to continue beyond two years after the date on which the complaint

was filed or the child was first placed into shelter care, whichever date is earlier[.]”

The trial court did not err in determining that the Mother had “a

chemical dependency that is so severe that it makes [her] unable to provide an

adequate, permanent home for [each child].” R.C. 2151.414(E)(2) and (D)(2)(a).

Thus, the trial court did not err in determining that the children could not be placed

with either parent within a reasonable time. Further, the order establishes that the

trial court considered all relevant factors in determining the best interests of the

children. R.C. 2151.414(D)(1). As noted above, the trial court had no authority to

extend the current temporary custody arrangement and the children had been in the

temporary custody of a public children services agency for 12 or more months of a

consecutive 22-month period. Thus, the trial court did not err in granting the

motion of the agency for permanent custody. See R.C. 2151.414(B)(1). Accordingly,

we overrule Appellant’s first assignment of error.

Assignment of Error No. 2: Appellant was denied effe[c]tive assistance of counsel and prejudiced thereby. In her second assignment of error, Mother contends that trial counsel

was ineffective insofar as trial counsel failed to call any witnesses to support

placement of the children with one of the individuals she named.

“This court has recognized that the right to effective assistance of trial

counsel attaches only to criminal proceedings and to proceedings for the permanent,

involuntary termination of parental rights.” In re C.M.C., 8th Dist. Cuyahoga Nos.

109545 and 109546, 2021-Ohio-314, ¶ 28, quoting In re M.I.S., 8th Dist. Cuyahoga

No. 98138, 2012-Ohio-5178.

To establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel’s performance fell below an objective standard of reasonable representation and (2) that he was prejudiced by that performance. Prejudice is established when the defendant demonstrates a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at ¶ 29, quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).

Appellant contends that she was prejudiced by her counsel’s failure to

subpoena the proposed custodians to establish a placement for the children with

persons other than the Agency. However, the only evidence in the record are the

reasons set forth by the social worker that the Agency determined that these persons

were either inappropriate or not interested in having permanent custody of the

children. As noted by the Agency on appeal, no evidence was produced concerning

what those witnesses would have said had they been subpoenaed to testify. Accordingly, Mother has not shown that, but for counsel’s alleged deficiency, there

was a reasonable probability that the result would have been different.

Accordingly, we overrule Mother’s second assignment of error.

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

Cuyahoga County 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.

_________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and EILEEN T. GALLAGHER, J., CONCUR