In re S.B.

2021 Ohio 1091

• Court: Ohio Court of Appeals
• Decided: April 1, 2021
• Docket: 110016
• Status: Published

Opinion

[Cite as In re S.B., 2021-Ohio-1091.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE S.B., ET AL. : : Nos. 110016 and 110017 Minor Children : : [Appeal by S.J., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 1, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD18915344 and AD18915345

Appearances:

Edward F. Borkowski, Jr., for appellant.

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

LARRY A. JONES, SR., P.J.:

Mother-appellant, S.J. (“Mother”), appeals from the trial court’s

judgments granting the motion of appellee, the Cuyahoga County Division of

Children and Family Services (“CCDCFS” or “the Agency”), for permanent custody

of Mother’s three minor children, M.B. (date of birth February 22, 2017), and twins Se.B. and Sy.B. (date of births September 29, 2018).1 For the reasons that follow,

we affirm.

Procedural History

In mid-December 2018, approximately three months after the twins

were born and when M.B. was approaching two years of age, the children were

removed from Mother and Father’s2 care pursuant to an emergency ex parte order.

The Agency sought the order because Sy.B., one of the twins, had suffered a broken

arm and Mother was unable to explain how the injury had occurred. Mother was

charged with child endangerment as a result of the injury. See Cuyahoga C.P. No.

CR-18-635851-B.

The day following the emergency order, CCDCFS filed a complaint,

wherein it alleged that Sy.B. was abused, and all three children were dependent.

The Agency sought a disposition of temporary custody. After a hearing, the trial

court granted CCDCFS predispositional temporary custody of the children.

In March 2019, the trial court held a hearing, and Mother stipulated

to an amended complaint. The trial court adjudicated all three children to be

dependent; Sy.B. was also adjudicated abused. In July 2019, after a hearing, the

children were committed to the temporary custody of CCDCFS.

In December 2019, the Agency filed a motion to modify temporary

custody to permanent custody; an amended motion was filed in February 2020.

1The trial court issued three judgment entries; one for each child.

2Father’s parental rights were also terminated. He is not a party to this appeal, however, and will therefore only be minimally discussed. The hearing on the permanent custody motion was held in September 2020, after

which the trial court granted the Agency’s motion, terminated Mother’s parental

rights, and committed the children to the permanent custody of CCDCFS.

Trial Testimony

CCDCFS presented two witnesses at the hearing on its motion for

permanent custody: case worker Sherri Alvis (“Alvis”) and case worker Frank

Townsley (“Townsley”). They established the following facts.

Alvis testified that she had been involved with the family prior to

Sy.B.’s injury in December 2018. Specifically, she became involved with the family

in September 2018 when the twins were born because Mother tested positive for

drugs at their births.

After the December 2018 referral to the Agency about Sy.B.’s arm,

Alvis spoke with Mother about the injury. Mother told Alvis that she noticed

something was wrong with Sy.B.’s arm but did not think it was broken. Mother

was unable to tell Alvis how or when the injury occurred.

Alvis testified that a case plan was developed to address Mother’s

parenting, mental health, and substance abuse issues. Mother engaged in some

substance abuse services but was twice discharged for noncompliance. Thereafter,

CCDCFS referred Mother for a higher level of care. At the time of trial in

September 2020, Mother had been engaged in inpatient treatment substance

abuse services; she had started the treatment in late July 2020. Mother’s last drug

screen was taken on July 14, 2020; she testified positive for marijuana. At the time, she was pregnant, and it was a week before her sentencing in the child

endangerment case.

A no-contact order was issued in the child endangerment case, and

Mother’s visitation with the children had to comply with that order; supervised

visitation was held at the Jane Edna Hunter building in Cleveland. When the

COVID-19 lockdown restrictions were implemented in March 2020, the visitations

were done virtually. Mother attended approximately 70-80 percent of all the

visits. According to both Alvis and Townsley, Mother’s interaction with the

children was appropriate.

At one point, Mother and Father were having “issues” and Mother

sought Alvis’s help in finding another place to live. Alvis helped Mother get

registered at a homeless shelter. Alvis testified that she had not seen Mother’s

residence; Mother told her that “it wasn’t appropriate,” so she and the children

were going to live with maternal grandmother. Eventually, Mother and Father got

a home together.

As of August 2020, Mother’s visitation with the children still had not

progressed beyond supervised visitation because she had not yet demonstrated

sobriety and was on probation for the child-endangerment case. Mother also still

had ongoing issues with housing and basic needs. The only case-plan service that

she had completed was the parenting component, which she completed at the

beginning of the case. Townsley testified that when the case went to trial in September

2020, he was not aware that Mother had secured housing. He testified that

Mother and Father had told him that they were “just staying” at the house where

they were then living, implying that it was not permanent. Moreover, Mother and

Father told Townsley that they would meet him outside the house. Townsley

admitted that he never asked to go inside the house, however. Also, as mentioned,

Mother was engaged in inpatient-treatment-sobriety services at the time of trial.

She had started the treatment in mid-July 2020.

Since their removal from their parents’ care, the children had been

placed in foster care; the twins were placed together and M.B. was placed in a

different foster home. Townsley testified that the placements were positive and

appropriate, and the children had good relationships with their foster parents.

CCDCFS sought the change from temporary custody to permanent

custody based on Mother’s failure to establish sobriety and her inability to

maintain stable housing.

The children, who were three and almost two years old at the time of

trial and unable to express their wishes as to the outcome of the proceeding, had a

guardian ad litem (“GAL”). The GAL stated the following on their behalf:

These are extremely difficult cases for Guardian ad Litems because we’re talking about severing parental rights and nobody ever wants to do that, but yet I am charged with the responsibility of making an investigation and a recommendation of what’s in the best interest of the children, and based upon my investigation it is my recommendation that the bests interests of the children is for this Court to grant the motion that was filed by the Agency. Trial Court’s Findings and Mother’s Assignment of Error

The trial court issued three judgments, one for each child, granting

CCDCFS’s motion for permanent custody, thereby terminating Mother’s parental

rights. As to each child, the court made a finding under R.C. 2151.414(B)(1)(a) 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.” In support of its findings, the court

included specific findings in relation to multiple factors set forth under R.C.

2151.414(C). The trial court further found that permanent custody was in each

child’s best interest under R.C. 2151.414(D).

Mother assigns the following sole assignment of error for our

review: “The trial court abused its discretion by granting permanent custody of

Appellant’s children to CCDCFS against the manifest weight of the evidence.”

Law and Analysis

We begin our discussion by recognizing that a parent has a

“‘fundamental liberty interest’ in the care, custody and management” of his or her

child, 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), and

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). This right is not absolute, however. 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., 8th Dist. Cuyahoga No. 104325, 2017-Ohio-1037, ¶ 29, quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391

N.E.2d 1034 (1979).

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, and, therefore, 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).

The clear and convincing standard of review applies to permanent-

custody determinations. “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., at ¶ 8. “It produces in the mind of the trier of fact a

firm belief or conviction as to the facts sought to be established.” Id.

In determining whether a juvenile court based its decision on clear

and convincing evidence, a reviewing court will examine the record to determine

whether the trier of fact had sufficient evidence before it to satisfy the degree of

proof. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24, citing

State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). 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.

Before a juvenile court can terminate parental rights and grant permanent custody

of a child to CCDCFS, it must apply the two-prong test set forth in R.C. 2151.414.

First Prong: R.C. 2151.414(B)(1)(a)-(e)

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.

Here, the trial court made a finding as to each child under

subsection (a) 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.” The court

supported its findings with the following factors set forth under R.C. 2151.414(E):

failure to remedy (E)(1); lack of commitment (E)(4); pleaded guilty to child

endangerment charges (E)(6); and abuse of Sy.B. (E)(15).

Mother has not challenged the trial court’s finding under the first

prong of the test that each 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.” Our

review demonstrates that the finding was supported by some competent, credible

evidence. As Mother acknowledges, “she must concede that she was convicted of

one of the listed offenses in (E)(6) and thus under the statute the court had to

make the finding that it made.” Mother’s brief, p. 10. See R.C. 2151.414(E)(6) (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” if “one or

more of the following exist * * * the parent has been convicted of” child

endangerment “and the child or a sibling of the child was a victim of the offense.”). Because there was no error with the court’s finding under the first prong, we

consider the court’s finding under the second prong.

Second Prong: R.C. 2151.414(D)

Second, 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(D). This court reviews a trial court’s best-interest

determination under R.C. 2151.414(D) for an abuse of discretion. In re J.F., 2018-

Ohio-96, 102 N.E.3d 1264, ¶ 55 (8th Dist.), citing In re D.A., 8th Dist. Cuyahoga

No. 95188, 2010-Ohio-5618, ¶ 47. In this regard, “‘[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 J.F. at id., quoting In re N.B., 8th Dist. Cuyahoga No. 101390,

2015-Ohio-314, ¶ 60.

In considering the best-interest determination, R.C. 2151.414(D)(1)

mandates that the juvenile court consider all relevant factors, including 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.

The juvenile court has considerable discretion in weighing these

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

abuse of that discretion. In re D.A. at id. Although the juvenile court is required to

consider each factor listed in R.C. 2151.414(D)(1), no one factor is to be 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. Only one of the factors set forth in R.C. 2151.414(D)(1) needs to

be resolved in favor of permanent custody. In re A.B., 8th Dist. Cuyahoga No.

99836, 2013-Ohio-3818, ¶ 17.

Moreover, “the best interest determination focuses on the child, not

the parent.” In re K.Z., 8th Dist. Cuyahoga No. 107269, 2019-Ohio-707, ¶ 85,

citing In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 59. “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. at ¶ 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).

Here, the trial court found under subsection (a) that the children are

“bonded with foster parents and [have] a very positive relationship with them.”

Under subsection (b), the court noted that the children were too young to express their wishes, but the GAL recommended permanent custody. The court further

found under subsection (c) that at the time of the September 2020 trial, the

children had been in CCDCFS’s custody since December 2018, which meant that

the twins had been in the Agency’s custody since they were three months old. The

court further found that they were doing well in their foster care placements.

In regard to the finding under subsection (d) relative to the

children’s need for a legally secure placement and whether that could be achieved

without a grant of permanent custody, the court found that the children “cannot be

placed with one of the child’s parents within a reasonable time or should not be

placed with either parent.” The court further made a specific finding as to each

child that the child

needs a safe and stable home where [the child’s] basic needs can be met on a consistent basis as well as a home in which [the child] can thrive. This cannot be achieved with Mother or Father as they do not have stable housing and have continuously failed to address the issues that led to the removal of the child.

Upon review, there is competent, credible evidence to support the

trial court’s best-interest finding; it did not abuse its discretion. In regard to the

children’s interaction with significant people in their lives, it is true that Mother

visited with the children 70 to 80 percent of her visitation time and that her

visitations were generally appropriate. However, because of the no-contact order,

the children’s young ages, and the Covid-19 restrictions, her ability to bond with

them was limited. They have spent the majority of their young lives in foster care and have bonded with their foster families. To that end, the GAL noted the

children’s young ages and recommended permanent custody.

Mother contends that because she made progress on her case plan,

the children’s need for secure placement could have been achieved without

granting permanent custody to the CCDCFS. But this court has held that after

making a “cannot or should not” finding under R.C. 2151.414(E), the trial court is

required to place the child with someone other than the parent. In re Mayle, 8th

Dist. Cuyahoga Nos. 76739 and 77165, 2000 Ohio App. LEXIS 3379, 20-21 (July

27, 2000). As mentioned, Mother conceded that one of the findings under R.C.

2151.414(E) existed here; that is, that she had been convicted of child

endangerment of one of her children.

We recognize the impediments the Covid-19 restrictions interjected

in this case. But those restrictions were not imposed until 15 months into the case.

An order extending temporary custody would have only lasted until December

2020, because the court may not maintain a child in temporary custody beyond

two years. See R.C. 2151.353(G); R.C. 2151.415(D)(4). There is no indication in

the record that Mother would have been able to comply within that deadline.

In light of the above, the trial court’s best-interest determination

was supported by some competent, credible evidence and the trial court did not

abuse its discretion in making it. 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 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). The record here demonstrates that the trial court sought to fulfill

that goal.

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.

LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR