In re T.H.

2014 Ohio 2985

• Court: Ohio Court of Appeals
• Decided: July 3, 2014
• Docket: 100852
• Status: Published

Opinion

[Cite as In re T.H., 2014-Ohio-2985.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100852

IN RE: T.H. A Minor Child

[Appeal By Mother]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 10913091

BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: July 3, 2014

ATTORNEY FOR APPELLANT Daniel J. Bartos Bartos & Bartos, L.P.A. 20220 Center Ridge Road, Suite 320 Rocky River, Ohio 44116

ATTORNEY FOR APPELLEE C.C.D.C.F.S.

Timothy J. McGinty Cuyahoga County Prosecutor By: Mark Adelstein Assistant County Prosecutor Cuyahoga County Department of Children and Family Services 8111 Quincy Avenue, Room 450 Cleveland, Ohio 44104

GUARDIAN AD LITEM FOR CHILD

James H. Schultz 1370 Ontario Street, Suite 1520 Cleveland, Ohio 44113

ATTORNEY FOR L.J.

Rufus Sims 1370 Ontario Street, Suite 330 Cleveland, Ohio 44113

KATHLEEN ANN KEOUGH, P.J.: {¶1} Appellant-mother (“appellant”), appeals from the judgment of the Common

Pleas Court, Juvenile Division, granting permanent custody of her minor child, T.H., to

appellee, the Cuyahoga County Department of Children and Family Services

(“CCDCFS”).1 For the reasons that follow, we affirm.

{¶2} On July 20, 2011, CCDCFS requested and received an ex parte telephonic

order of custody of T.H. The basis for the request was that L.J., the legal guardian of

T.H., L.H., 2 and appellant, who was a minor at the time, was charged with child

endangering where the children were alleged to be the victims. When T.H. and appellant

were removed from the L.J.’s home, it was CCDCFS’s policy that T.H. and appellant not

be placed in the same foster placement. Therefore, T.H. and L.H. were placed in foster

care together, while appellant was placed in a different foster home.

{¶3} The day after removal of the children, CCDCFS filed a complaint alleging

dependency and requested a disposition of temporary custody of all the children,

including T.H. Predispositional temporary custody was granted to CCDCFS two days

later. On December 7, 2010, the trial court conducted an adjudicatory hearing on

CCDCFS’s amended complaint. Appellant and L.J. subsequently entered into an

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

this court’s established policy regarding non-disclosure of identities in juvenile cases.

L.H. is appellant’s sister, who was a minor in 2011. 2 admission to the amended complaint; T.H. was adjudicated dependent and placed in the

temporary custody of CCDCFS on January 31, 2011. In September 2011, appellant was

placed in the same foster home as T.H. and L.H., and continued to reside there for

approximately 16 months until January 2013 when she voluntarily left the home.

{¶4} On July 10, 2012, CCDCFS filed a motion to modify temporary custody to

permanent custody pursuant to R.C. 2151.413, and the court held an evidentiary hearing

on the motion in August 2013. The trial court issued an oral decision granting permanent

custody of T.H. to CCDCFS, and subsequently memorialized its order of permanent

custody, terminating appellant’s parental rights in a written decision dated December 2,

2013. Appellant now appeals from this order, raising three assignments of error.

I. Standard of Review

{¶5} When reviewing a trial court’s judgment in child custody cases, the

appropriate standard of review is whether the trial court abused its discretion, which

implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983); Miller v.

Miller, 37 Ohio St.3d 71, 73, 523 N.E.2d 846 (1988). An appellate court must adhere to

“‘every reasonable presumption in favor of the lower court’s judgment and finding of

facts.’” In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994),

quoting Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 638 N.E.2d 533 (1994).

{¶6} 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., 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). 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.

{¶7} “Clear and convincing evidence is more than a mere preponderance of the

evidence; it is evidence sufficient to cause a trier of fact to develop a firm belief or

conviction as to the facts sought to be established.” T.S. at ¶ 24, citing In re Estate of

Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).

{¶8} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute

requires the court to find, by clear and convincing evidence, that (1) granting permanent

custody of the child to the agency is in the best interest of the child and (2) either the child

(a) cannot be placed with either parent within a reasonable period of time or should not be

placed with either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is

abandoned; (c) is orphaned and no relatives are able to take permanent custody of the

child; or (d) 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. R.C.

2151.414(B)(1). II. R.C. 2151.414(B)(1)(a) and (d) — Second Prong

{¶9} In her first assignment of error, appellant contends that the trial court erred in

granting CCDCFS permanent custody of T.H. because the requirement of R.C.

2151.414(B)(1)(d) was not satisfied by clear and convincing evidence.

{¶10} The trial court determined that the second prong of R.C. 2151.414(B)(1)

was satisfied because T.H. had been in the temporary custody of a public services agency

for 12 or more months of a consecutive 22-month period. (R.C. 2151.414(B)(1)(d)); or

alternatively, that T.H. could not be placed with either parent within a reasonable amount

of time or should not be placed with his parents. (R.C. 2151.414(B)(1)(a)).

{¶11} T.H. was placed in emergency temporary custody of CCDCFS on July 20,

2010. Pursuant to R.C. 2151.414(B)(1), temporary custody began on September 20,

2010 — 60 days after removal. The trial court awarded temporary custody to CCDCFS

on January 31, 2011. At the time CCDCFS filed its motion to modify temporary custody

to permanent custody on July 12, 2012, T.H. had been in the temporary custody of

CCDCFS for over 18 months. Accordingly, the second prong of R.C. 2151.414(B)(1) is

satisfied.

{¶12} Appellant contends that because the separation at the time of removal was

based on CCDCFS’s policy that she and T.H. not be placed together in foster care and

that she was subsequently placed in the same foster home with T.H., the placement should

not be characterized as “temporary custody”; rather it was “protective supervision.” {¶13} Pursuant to R.C. 2151.011(B)(42), protective supervision is a disposition

that the juvenile court may make when considering a complaint for abused, neglected,

dependent, or unruly child. In this case, the disposition was temporary custody, not

protective supervision, and no party requested for a modification of temporary custody to

protective supervision. Accordingly, the circumstances in this case cannot be

“characterized” as protective supervision without a specific disposition as such.

{¶14} We agree that appellant should not be penalized for this involuntary

separation from her child, especially when the allegations that caused appellant and T.H.

to be removed from their legal guardian were not attributable to any abuse or neglect at

the hands of appellant. Furthermore, while we question CCDCFS’s seemingly blanket

policy of separating a parent and child in these instances, the testimony revealed that

separation was reasonable.

{¶15} According to social worker Cynthia Hurry, appellant and T.H. were also

separated because there was no bond or any real attachment between them. At the time

of removal, T.H. was detached and developmentally delayed, a concern to the agency that

appellant was not appropriately caring for him. The separation occurred not only

because of CCDCFS policy, but because of these other reasons as well.

{¶16} Moreover, even if appellant and T.H. were initially placed together at the

time of removal, it would not change the fact that T.H. has been in the temporary custody

of a public services agency for 12 or more months of a consecutive 22-month period. Appellant’s placement is irrelevant under this prong of R.C. 2151.414(B)(1)(d). Rather,

this issue would be better raised in addressing the factors considered under R.C.

2151.414(E). Accordingly, clear and convincing evidence exists to support the trial

court’s decision finding the second prong of R.C. 2151.414(B)(1) was satisfied.

{¶17} The trial court alternatively found that even if the child had not been in the

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

22-month period, T.H. could not be placed with either of his parents within a reasonable

period of time or should not be placed with his parents. See R.C. 2151.414(B)(1)(a).

{¶18} Because we have held that the juvenile court properly found that T.H. was in

the temporary custody of CCDCFS for at least 12 months pursuant to R.C.

2151.414(B)(1)(d), we need not address whether the agency failed to prove T.H. could

not be placed with appellant within a reasonable time. See In re C.W., 104 Ohio St.3d

163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21 (“An agency need no longer prove that a

child cannot be returned to his parents within a reasonable time or should not be returned

to the parents, so long as the child has been in the temporary custody of an agency for at

least 12 months”); In re L.C., 8th Dist. Cuyahoga Nos. 93319, 93320 and 93321,

2009-Ohio-6651, ¶ 18.

{¶19} Appellant’s first assignment of error is overruled.

III. R.C. 2151.414(B)(1) — First Prong, Best Interest

{¶20} In her second assignment of error, appellant contends that the trial court erred in granting CCDCFS permanent custody because permanent custody was not in

T.H.’s best interest.

{¶21} Under the first prong of R.C. 2151.414(B)(1), the trial court is required to

make a finding that permanent custody is in T.H.’s best interest by applying the factors set

forth in R.C. 2151.414(D)(1)-(5).

{¶22} R.C. 2151.414(D) requires that in determining the best interest of the child,

the court must consider all relevant factors, including, but not limited to: (1) the

interaction and interrelationship of the child with the child’s parents, siblings, relatives,

foster parents, and out-of-home providers, and any other person who may significantly

affect the child; (2) the wishes of the child as expressed directly by the child or through

the child’s guardian ad litem; (3) the custodial history of the child; (4) 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; and (5) whether any factors in R.C.

2151.414(E)(7) through (11) are applicable.

{¶23} “There 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 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). {¶24} In this case, the trial court considered all relevant factors, including those

listed in R.C. 2151.414(D)(1)-(5). A review of the record clearly and convincingly

supports the trial court’s finding that permanent custody is in T.H.’s best interest.

{¶25} Elizabeth Zolla (“Zolla”), a social worker with Twelve of Ohio, testified

regarding the interaction between T.H. and his foster parent. She stated that T.H. enjoys

his foster parent’s encouragement, especially when she “brags on him” about new skills

that he is accomplishing. It was explained that when T.H. was initially placed with his

foster parent, he was very detached, was afraid of being touched, and would not speak or

look at anyone; now, he interacts with others, greets people, and is described as “lovable.”

{¶26} T.H.’s foster parent testified regarding how T.H. responded after appellant

left the residence in 2013.

He didn’t respond no way or no how. It hasn’t really affected him. I know that he knows she’s gone because when she comes to see him, hi, mom. But when she leaves, it’s not like he cries a period of time or he goes and slump[s] in the corner. He goes on, you know. He knows that’s mom, but because they never really had an affectionate bond, it really doesn’t affect him.

(Tr. 282.)

{¶27} Regarding T.H. and appellant’s interaction, T.H.’s foster parent testified that

appellant regularly visits with T.H. and, while T.H. addresses appellant as “mom,” there

is no hugging. Furthermore, appellant and T.H.’s visits were initially unsupervised in the

home, however, after it was noticed that T.H. was starting to withdraw himself, the visits

became supervised. {¶28} Appellant testified that she regularly visits with T.H. in his home where

she helps him with his preschool words and plays with him. She stated she can care for

T.H. and provide for his basic needs. Appellant admitted that T.H.’s foster parent is

doing a “good job” with T.H.

{¶29} While the testimony demonstrates that appellant has made some

improvements in bonding with and attending to T.H., she still needs prompting about his

care and parenting. As explained by Zolla, appellant does not have “an issue with

application of caring for [T.H.], but [with] the intuition to act without being prompted at

times” that appellant lacks in parenting T.H. (Tr. 224.)

{¶30} T.H.’s foster parent testified that her children have bonded with both T.H.

and L.H., and they are part of the family. They go on all vacations, gatherings, holidays

together. “They’re my family like they’re mine. * * * He’s just like he’s mine, like he’s

ours, that he’s been around and everybody embraces him like they should.” (Tr.

283-284.)

{¶31} While T.H. was too young to express his wishes, his guardian ad litem

expressed to the court that T.H. should remain with his foster parent, but that appellant be

given more time to work on her case plan. The trial court found that the guardian’s

report and recommendation inappropriately considered the effect of permanent custody on

the appellant, in violation of R.C. 2151.414(C). The record supports this finding.

Moreover, T.H. has been in temporary custody for four years — T.H. is entitled to permanency and stability.

{¶32} Regarding custodial history, T.H. was removed from his legal guardian

when he was three years old after an allegation of child endangering was filed. As a

result, he was placed with his current foster placement in July 2010. T.H. has been in

this same placement since that time — almost four years. During his placement, he has

made substantial improvements, especially in his ability to communicate. The testimony

reveals that T.H. has made a “total turn around” since being placed in foster care.

{¶33} It is clear that T.H. has a need for a legally secure permanent placement;

however, based on the record before this court, this type of placement cannot be achieved

without a grant of permanent custody to the agency. T.H.’s foster parent is willing to

adopt both T.H. and L.H. Alternative options for T.H. that were before the trial court

were not options that would achieve a secure stable placement. Moreover, T.H.’s foster

parent testified that appellant is welcome in her home, would never be prevented from

coming into her home, and she will continue to facilitate a relationship between the two,

“if [appellant] wants it.” This statement is supported by the evidence presented.

{¶34} Upon our review of the record, we find that the trial court weighed all

relevant factors and made a decision in the best interest of T.H. This court finds

competent and credible evidence in the record supporting the trial court’s decision.

Appellant’s second assignment of error is overruled.

IV. Exercise Reasonable Efforts for Reunification {¶35} In her third assignment of error, appellant contends that the trial court erred

in granting permanent custody to CCDCFS because the agency did not exercise

reasonable efforts to return the child to her home or otherwise avoid permanent custody

pursuant to R.C. 2151.419.

{¶36} CCDCFS moved for permanent custody of T.H. pursuant to R.C.

2151.413. The Ohio Supreme Court has held that by its terms, R.C. 2151.419 “does not

apply to motions for permanent custody brought pursuant to R.C. 2151.413, or to hearings

held on such motions pursuant to R.C. 2151.414.” In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 41-43, citing In re A.C., 12th Dist. Clermont No.

CA-2004-05-041, 2004-Ohio-5531, ¶ 30. Therefore, the trial court was not required to

make any specific determination whether CCDCFS made reasonable efforts.3

{¶37} Accordingly, appellant’s third assignment of error is overruled.

{¶38} 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.

However, if the trial court used R.C. 2151.414(B)(1)(d) to satisfy the first 3

prong in determining whether to grant permanent custody, the court would have been required to address the issue of whether CCDCFS made reasonable efforts through case planning to reunify appellant and T.H. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

TIM McCORMACK, J., and EILEEN T. GALLAGHER, J., CONCUR