[Cite as In re V.F., 2022-Ohio-2960.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE V.F. : : A Minor Child : No. 111388 : [Appeal by B.T., Mother] :
_________________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 25, 2022 _________________________________________
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD21905219 __________________________________________
Appearances:
Wargo Law, LLC, and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Zachary LaFleur, Assistant Prosecuting Attorney, for appellee.
EILEEN A. GALLAGHER, P.J.:
Appellant–mother B.T. (“Mother”) appeals the judgment of the
Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”),
that terminated her parental rights and granted permanent custody of her minor
child V.F. to the appellee, the Cuyahoga County Division of Children and Family
Services (“CCDCFS” or “the agency”). The juvenile court found that V.F. could not or should not be placed with Mother and that awarding permanent custody to the
agency was in V.F.’s best interest. Mother contends that these findings were not
supported by clear and convincing evidence and that the juvenile court, therefore,
erred in granting permanent custody of V.F. to the agency. She argues that she was
engaged in substance abuse treatment and V.F. could have been placed with her
within a reasonable time. She says the juvenile court should have extended the
agency’s temporary custody to allow her to complete her substance abuse treatment
and she argues that this would have been in V.F.’s best interest. For the reasons that
follow, we affirm.
I. Factual Background and Procedural History
Mother gave birth to V.F. on September 18, 2020.
On June 21, 2021, the Cuyahoga County Division of Children and
Family Services filed a complaint for neglect and dependency along with a motion
for predispositional temporary custody. The complaint alleged that Mother: (1) has
mental health issues that affect her ability to provide adequate care for V.F., has been
diagnosed with schizophrenia and was at the time committed to a treatment facility
for competency restoration in two criminal cases pending in the Cuyahoga County
Court of Common Pleas, General Division; (2) tested positive for cocaine and
marijuana while pregnant with V.F. and has failed to address her substance abuse
issues, specifically with regard to cocaine and marijuana; (3) has failed to support,
visit or communicate with V.F. for longer than ninety days and (4) has an older child who was adjudicated dependent based in part on Mother’s mental health issues and
committed to the legal custody of the child’s father. Cuyahoga J.C. No. AD19914333.
The complaint further alleged that V.F. had been in the uninterrupted
custody of the agency since approximately one day after his birth. The complaint
alleged that the agency had filed three previous complaints related to V.F., but those
complaints were not resolved within the statutory time limits and had been or would
be dismissed. Cuyahoga J.C. Nos. AD20908009, AD20910537 and AD21901997.
The complaint also alleged that the agency made reasonable efforts to prevent the
removal of V.F. from the home and removal from the home was in V.F.’s best
interest.1
The agency supported its motion for predispositional temporary
custody with an affidavit from CCDCFS social worker Cherron Phillips. In the
affidavit, Phillips attested to the allegations in the complaint. She further averred
that “the following reasonable efforts were made” by the agency:
1. The services provided to prevent or eliminate the need for removal of the child from the home prior to placement and the actions that will be taken following placement to make it possible for the child to return home: substance abuse assessment, mental health treatment[.]
2. Why these services did not prevent the removal of the child from the home or enable the child to return home: Mother unavailable to care for the child due to her mental health[.]
(Emphasis deleted.)
1 As for V.F.’s father, the complaint alleged that the alleged father had failed to establish paternity and had failed to visit, support or communicate with V.F. since V.F.’s birth. A. Hearing on the Motion for Predispositional Temporary Custody
On June 22, 2021, the magistrate conducted a hearing on the
complaint and motion. Mother did not attend the hearing. At the conclusion of the
hearing, the magistrate entered an order committing V.F. to the emergency
temporary care and custody of the agency. In its journal entry, the magistrate
included the findings that V.F.’s return to Mother’s home “will be contrary to the
child’s best interest,” “[the] child would be at immediate risk of harm” and “there is
not a suitable relative of the child who is willing to be a temporary custodian * * *.”
The magistrate also noted that “Mother’s whereabouts are unknown. Mother has
identified mental health and substance abuse issues that need to be addressed.
Child is doing well in current placement.” After a trial on September 7, 2021, the
magistrate issued a decision finding that the allegations in the complaint had been
proven by clear and convincing evidence and adjudicated V.F. to be a neglected and
dependent child.
On September 23, 2021, the juvenile court approved and adopted the
magistrate’s decision.
B. The Motion to Modify Temporary Custody to Permanent Custody
On September 23, 2021 — the same day that the juvenile court
journalized its approval of the magistrate’s decision — CCDCFS filed a motion to
modify its temporary custody of V.F. to permanent custody. In support of the
motion, Cherron Phillips averred, among other things, as follows: The child was adjudicated neglected and dependent and committed to the temporary custody of CCDCFS in an order journalized September 23, 2021.
A case plan was filed with [the] Juvenile Court and approved which requires that Mother complete a mental health assessment and follow the recommendations; complete a drug and alcohol assessment and follow the recommendations; and provide random drug screens.
Mother has failed to complete a mental health assessment for CCDCFS. Mother is currently incarcerated [as a result of two criminal cases in the Cuyahoga County Court of Common Pleas], under which she was previously court-ordered to in-patient treatment for competency restoration.
Mother has failed to complete a drug and alcohol assessment or provide random drug screens.
Mother has failed to support, visit, or communicate with the child for a period greater than 90 days.
After several pretrial conferences and continuances, the juvenile
court set a trial on the motion for March 16, 2022. Mother’s counsel filed a motion
to continue the trial on March 10, arguing that the Cuyahoga County Court of
Common Pleas, General Division, had recently ordered Mother to complete
inpatient drug treatment and as a result she would have difficulty assisting in the
preparation of her case. The juvenile court denied the motion on March 11, 2022.
C. The Trial on the Motion for Permanent Custody
The trial proceeded as scheduled on March 16, 2022. At the start of
the trial, Mother’s counsel orally renewed the motion to continue because Mother
was not present. Counsel repeated that Mother had entered court-ordered,
inpatient drug treatment the preceding week. Counsel reported that Mother was
permitted to attend the trial, but he had not heard back from the facility after the written motion to continue was denied. The juvenile court denied the oral motion.
Mother ultimately arrived at the trial during the presentation of the agency’s case.
1. The Agency’s Case
The agency presented one witness — Cherron Phillips.
Phillips testified that she is an ongoing social worker for the agency,
and she is not a licensed social worker. She said that she has been assigned to
Mother’s case since October 2020. She reported that paternity has not been
established for V.F. and there is no alleged father for V.F.
Phillips testified that Mother tested positive for cocaine and
marijuana while pregnant with V.F. and that Mother has mental health issues that
affect her ability to provide adequate care for V.F. She testified that a case plan was
developed for Mother that identified substance abuse and mental health as
concerns. Phillips said the case plan was reviewed with Mother and Mother
expressed that she understood the case plan services. Phillips testified that Mother
did not express any objections to the case plan and agreed to work the plan, which
had the reunification of V.F. and Mother as its ultimate objective.
Phillips testified that despite this early agreement to work the case
plan, Mother was not very engaged with the agency until a court ordered Mother to
undergo a competency evaluation in May 2021.
Specifically, as it relates to the substance abuse concerns, Phillips
testified that Mother was referred to an entity called “the Centers for Children and Families” (“The Centers”)2 for substance abuse services when V.F. initially came into
the agency’s custody, and Mother agreed to engage in those services. Phillips said
several appointments were made for Mother, and Mother “had several no-shows
* * * for those assessments.”
As for the mental health concerns, Phillips testified that Mother did
not receive mental health services at this time either.
Phillips testified that between September 2020 and January 2021,
V.F. was staying with a maternal great aunt, so Mother was able to visit as she
wanted. Phillips reported visiting the aunt monthly, and she said the aunt told her
that — despite the open visitation schedule — Mother would only visit V.F.
“sporadically.” Phillips said the aunt reported that Mother would also see V.F. when
the aunt took V.F. to see his grandmother.
Phillips testified that the agency moved V.F. from the aunt’s residence
into foster care in January 2021. Phillips said the agency was not able to reach
Mother to establish a new visitation schedule because Mother was being “evasive”
with the agency. According to Phillips’s testimony, Mother did not visit V.F.
between January and May 2021.
Phillips testified that a court ordered Mother to undergo a
competency evaluation at Northcoast Behavioral Healthcare in a criminal case. She
said that Mother was at Northcoast from May 2021 until her discharge in September
2 Phillips may have been referring to The Centers for Families and Children. 2021. The agency offered into evidence a certified discharge summary from
Northcoast indicating that Mother reported previous diagnoses of schizophrenia
and bipolar disorder and providing discharge diagnoses of “Bipolar I Disorder, most
recent episode mania with psychosis, currently in full remission” and “Cannabis use
disorder, in early remission, in a controlled environment.”
Phillips testified that after Mother’s discharge from Northcoast,
Mother was supposed to follow up with The Centers in October 2021. Phillips said
that Mother missed that appointment but followed back up in November 2021.
Phillips stated that Mother had a mental health assessment at The Centers, but
Mother decided to attend mental health services through a different entity called
Brighter Tomorrow Community Services.
Phillips testified that Mother also completed a substance use
assessment at The Centers in November 2021. Phillips said that Mother admitted
that she had relapsed by using cocaine, and then she started outpatient services with
The Centers, attending services two days a week. Phillips testified that the agency
recommended that Mother also obtain peer support with an entity called “Thrive,”
but Mother refused to give the agency required information to allow the referral to
be completed.
Phillips reported that the agency also spoke with Mother about her
employment situation in November 2021. She said Mother reported that Mother
had worked at a temporary agency for a time and then she stopped working there
and started working with her father doing construction. Phillips testified that Mother was asked to regularly undergo drug
screens and after Mother’s discharge from Northcoast she would go once weekly, as
requested, to submit urine samples. Phillips also said that after her discharge,
Mother allowed CCDCFS to do a home visit when the agency requested.
Phillips testified that after Mother was released from Northcoast, the
agency established a visitation schedule for Mother that allowed Mother to visit V.F.
once a week for two hours. She said the visitation was set for a time and at a location
that were convenient to Mother. Phillips said the agency counseled Mother about
the importance of visiting and bonding with V.F. and Mother would respond,
“Okay.” Phillips testified that Mother only visited V.F. twice after her discharge from
Northcoast.
Phillips described that during the first visit — in October 2021 — there
was not much interaction between Mother and V.F., and V.F. clung to the family
advocate. Phillips said that Mother called V.F.’s name and changed his diaper.
Phillips testified that there was no bond demonstrated between Mother and V.F. at
this visit.
Phillips testified that following this visit, she corresponded with
Mother a lot. Mother called the agency a couple times to ask about when visits were
set up but she did not ask about how V.F. was doing. Phillips said that most of the
time, Mother would not call to confirm her visits and missed many of the scheduled
visits. She said there were times where V.F. was brought to the visitation location,
but Mother did not show up. Phillips said that Mother again visited V.F. in January 2022. She
described that during that visit, V.F. stood by Mother, holding on to the couch where
Mother was sitting. Phillips said Mother picked him up, called his name and showed
him something on her phone. She said Mother left early from the visit to attend a
component of her treatment. Phillips testified that there was no bond demonstrated
between Mother and V.F. at this visit, either.
Phillips testified that the agency tried to schedule another visit with
Mother for the end of January 2022 but Mother stated that she “was tired.”
Phillips testified that there had been no interaction between the
agency and Mother since January 2022. She said CCDCFS had reached out but
Mother had not responded back.
The agency offered into evidence a drug screen that was provided to
CCDCFS. Describing the results of the screen, Phillips testified that a urine sample
was collected from Mother on February 2, 2022 and the screen was positive for
cocaine. Phillips testified that Mother did not successfully complete outpatient
substance use services at The Centers due to “disengagement”; specifically, she said
Mother stopped attending substance use services at The Centers on February 16,
2022.
Phillips testified that Mother was still engaged in mental health
services as of a week and a half before the trial, before her commitment to an
inpatient drug treatment program. Phillips testified that substance abuse and mental health concerns
remain on Mother’s case plan. She said that in her experience and training, the use
of illegal substances can negatively affect mental health treatment. She testified that
she did not believe that Mother had substantially benefitted from the mental health
and substance abuse services offered by the agency. She said that Mother had not
remedied the conditions that initially led to the removal of V.F. from the home and
that Mother could not provide a safe, stable and permanent home for V.F.
Phillips testified that she has not discussed employment with
Mother more recently than November 2021 because she has not been able to reach
Mother since Mother’s last visit with V.F.
Phillips reported that the agency completed a kinship assessment for
a maternal aunt and determined that the aunt was not a viable option for V.F., and
that Mother has not presented any other relatives to the agency as potential care
alternatives.
Phillips testified that she has visited V.F. in his foster placement and
V.F. “is actually doing very well.” She said that V.F. appears to be bonded with the
foster family including the siblings that are in the foster home. Phillips testified that
V.F. appears calm and comfortable and is clingy with the foster mother and the other
children. Phillips said she observed V.F. playing on the floor and having books and
toys in his hands. Phillips testified that the foster family makes sure that V.F. is
medically up to date. She reported that the agency referred V.F. to an entity that
could help with his developmental growth and the foster family reached out and was waiting for an appointment for an assessment. She said there have been no concerns
about V.F.’s placement in the foster home.
Phillips testified that if permanent custody were granted to the
agency, she did not anticipate any placement changes in the foreseeable future.
Phillips said she believed permanent custody was in the best interest of V.F.
On cross-examination, Phillips admitted that it is common for people
to have relapses when trying to get sober.
Phillips further admitted that at the time of the trial, Mother was in
inpatient treatment for drug addiction, which Phillips said was the most severe type
of drug treatment. She testified that Mother was ordered by a court to undergo this
inpatient treatment.
In addition to offering the urine screen, nursing discharge summary,
June 21 complaint and September 23 judgment entry into evidence, the agency
offered a certified complaint for dependency and legal custody for another of
Mother’s children — S.P. — as well as a certified journal entry documenting that the
juvenile court had granted legal custody of S.P. to S.P.’s father because, among other
things, “Mother has not engaged in services[] and has never been consistent in
receiving mental health treatment. * * * Mother is unable to care for the child due to
her untreated mental health issues.” Cuyahoga J.C. No. AD19914333.
2. Mother’s Case
Mother did not offer any witnesses or evidence at the trial. 3. The Guardian Ad Litem’s Report
V.F.’s guardian ad litem testified that V.F. has “thrived” in his foster
home and is “doing wonderfully.” She said that he has not reached some of the
developmental milestones, but the foster family has taken steps to ensure that he
improves in that regard. She testified that this case has been continued numerous
times to allow Mother to work her case plan services. She said that visitations had
been scheduled and rescheduled at Mother’s convenience, and yet the visits
remained “sporadic at best.” She testified that she believed it was in V.F.’s best
interest to have permanent custody granted to the agency. She said that V.F.’s foster
family was willing to adopt him if he became available.
D. The Court’s Grant of Permanent Custody and Mother’s Appeal
The juvenile court granted permanent custody to the agency,
reasoning as follows:
Based on the testimony and evidence, it’s apparent that you [Mother], personally, have some issues that you need to address for you to, one, remain in the community, not in jail, and to treat your substance abuse issues and your mental health issues. * * * Your attorney is asking that I continue temporary custody so that you can hopefully complete your court ordered and Agency required treatment. I believe — that sounds like if I did it, granted his request, I’d be making my decision based on what’s in your best interest and not [V.F.’s].
The juvenile court journalized its decision on March 21, 2022. The
juvenile court found, by clear and convincing evidence, that V.F. could not be placed
with either of his parents or should not be placed with either parent. Specifically,
the juvenile court made the following findings: 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 mother and alleged father have failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. [R.C. 2151.414(E)(1)]
Mother has a chronic mental illness, a chronic emotional illness, and chemical dependency that is so severe that it makes the parent unable to provide an adequate, permanent home for the child at the present time and, as anticipated, within one (1) year after the [c]ourt holds the hearing in this matter. [R.C. 2151.414(E)(2)]
Mother and alleged father have neglected the child between the date * * * the original complaint was filed and the date of the filing of this motion by the failure to regularly visit, communicate [with], or support the child. [R.C. 2151.414(E)(3)]
Mother and alleged father have 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, have shown an unwillingness to provide an adequate, permanent home for the child. [R.C. 2151.414(E)(4)]
Mother has had parental rights terminated involuntarily with respect to a sibling of the child. [R.C. 2151.414(E)(11)]
Mother is unwilling to provide food, clothing[,] shelter, and other necessities for the child, or to prevent the child from suffering emotional or mental neglect as evidenced by her unwillingness to successfully complete a case plan so she can provide care for the child. [R.C. 2151.414(E)(14)]
The juvenile court further found that it was in V.F.’s best interest that
permanent custody be granted to the agency. The juvenile court found that the
agency had made reasonable efforts to reunify Mother and V.F.
Mother appealed, raising the following sole assignment of error for
review: The evidence presented to the trial court did not support, by clear and convincing evidence, a finding that permanent custody to the Agency was in the best interests of the child; whereas an extension of temporary custody should have been granted.
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, 157, 556 N.E.2d 1169 (1990) (a parent has a “‘fundamental liberty
interest’ in the care, custody, and management” of his or her child), quoting
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). This
right is not absolute, though. 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 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, approved “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. Standard for Terminating Parental Rights and Granting Permanent Custody to CCDCFS
An agency may obtain permanent custody of a child in two ways. In
re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 44 (8th Dist.), citing In re E.P., 12th Dist.
Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, ¶ 22. An
agency may first obtain temporary custody of the child and then file a motion for
permanent custody under R.C. 2151.413, or an agency may request permanent
custody as part of its abuse, neglect or dependency complaint under R.C.
2151.353(A)(4). Id. at ¶ 44. In this case, the agency requested temporary custody
and then filed a motion for permanent custody.
Pursuant to R.C. 2151.414, a juvenile court may grant permanent
custody of a child to an agency if the juvenile court determines by clear and
convincing evidence at a hearing that doing so is in the best interest of the child and
that any enumerated prerequisite exists, including — in relevant part — the
following:
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.
R.C. 2151.414(B)(1)(a) (line breaks added for clarity).
Here, the juvenile court found that V.F. has not been in the temporary
custody of CCDCFS for twelve or more months of a consecutive twenty-two-month
period. Neither Mother nor the agency challenge that finding as it relates to R.C.
2151.414(B)(1).
B. Whether V.F. Could Not Be Placed with Mother Within a Reasonable Time or Should Not Be Placed with Mother
In determining whether a child cannot or should not be placed with
one of their parents, a juvenile court must consider “all relevant evidence,” including
specific factors enumerated in R.C. 2151.414(E). If the juvenile court finds, by clear
and convincing evidence, that at least one of these enumerated factors exists as to
each of the child’s parents, the juvenile court must find that the child cannot be
placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(E).
Here, the juvenile court found by clear and convincing evidence that
numerous enumerated factors in R.C. 2151.414(E) applied — see above at paragraph 43 — and therefore V.F. could not be placed with Mother within a reasonable time
or should not be placed with her.
Mother challenges this finding because the agency filed the operative
complaint for temporary custody in June 2021, it filed the motion for permanent
custody only three months later in September 2021 and Mother was in a mental
health facility for the entire time between the complaint and the motion. Mother
also points out that she was engaged in outpatient substance use services from
November 2021 to February 2022, and she freely admitted to a relapse without
trying to hide it. Mother further states that at the time of the trial, she was in an
inpatient drug treatment program. All of these facts, she argues, prohibit a finding
by clear and convincing evidence that any of the R.C. 2151.414(E) factors were met.
“Clear and convincing evidence” is that “measure or degree of proof”
that “produce[s] in the mind of the trier of facts 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., 2015-Ohio-1028, at ¶ 8. “It is
intermediate, being more than a mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.” Cross, 161 Ohio St. at 477 (emphasis deleted).
“Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.”
Id.; see In re S.B., 8th Dist. Cuyahoga Nos. 110016 and 110017, 2021-Ohio-1091, ¶ 22 (“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.”). “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 G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62,
quoting In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.
In this case, the record shows that Mother tested positive for cocaine
and marijuana while pregnant with V.F. in September 2020, admitted to a relapse
on cocaine in November 2021 and then tested positive for cocaine in February 2022
through a urine screen. Mother’s case plan identified substance abuse as a concern
since September 2020, but Mother did not engage in substance abuse services until
November 2021.3 In other words, Mother did not agree to engage in substance
abuse services until after the agency moved for permanent custody of V.F.
Even knowing that the agency was asking for permanent custody of
V.F. based in part on these substance abuse concerns, Mother could not successfully
3 Agency social worker Phillips responded “no” when agency counsel asked if any substance abuse concerns persisted while Mother was not engaged in any treatment. It is not clear that Phillips understood the question asked. But in any event, the remainder of Phillips’s testimony and her sworn statements in support of the complaint and in support of the motion for permanent custody (filed in June and September 2021, respectively) make clear that substance abuse has been a concern for Mother since September 2020. complete outpatient services and tested positive for cocaine again in the first days of
February 2022. This relapse corresponded with Mother declining to visit V.F. and
losing contact with the agency, which was trying to reach Mother about the case
plan.
While Mother did enter inpatient drug treatment in March 2022 —
within a few weeks of this positive drug screen — she did not seek such severe
treatment voluntarily; a court ordered her to complete this treatment in connection
with a criminal case. There may have been reason to hope that this treatment would
be effective for Mother, starting her on the path to more permanent sobriety, but
there was sufficient competent evidence in the record for the juvenile court to find
by clear and convincing evidence that Mother’s chemical dependency was so severe
that she was unable to provide an adequate, permanent home for V.F. at the present
time and was not anticipated to be able to do so within a year of the trial, and
moreover that Mother had failed continuously and repeatedly to substantially
remedy the conditions causing V.F. to be placed outside the home. R.C.
2151.414(E)(1), (E)(2).
As for visitation, even when V.F. was staying with a maternal great
aunt and Mother had an open visitation schedule — in the first months of V.F.’s life
— Mother only visited V.F. “sporadically.” From the time the agency placed V.F. into
foster care in January 2021, the agency social worker testified that she observed no
bond between Mother and V.F. during visits. Perhaps more concerningly, Mother only visited V.F. twice while he has been in foster care despite the agency counseling
Mother on the importance of visitation and establishing a bond.
It is true that a court involuntarily ordered Mother into Northcoast
Behavioral Healthcare from May 2021 through September 2021. But the agency
social worker testified that Mother was not in contact with the agency before that
commitment — from January through May 2021 — for a visitation schedule to even
be established. And after Northcoast discharged Mother in September 2021, Mother
only visited V.F. twice despite having weekly visitation opportunities. Between
those two visits, Mother missed several scheduled visits. Mother was not able to
visit V.F. even though she was finally engaged in both mental health and substance
use services, and even knowing that the agency had asked for permanent custody of
V.F. When the agency tried to schedule a visitation with Mother for the end of
January 2022, Mother declined. This decision not to visit V.F. corresponded with
Mother testing positive for cocaine again and falling out of contact with the agency.
Even accepting Mother’s argument that she was physically unable to
visit V.F. while she was at Northcoast, there was sufficient competent evidence in
the record for the juvenile court to find by clear and convincing evidence that Mother
has neglected V.F. and demonstrated a lack of commitment toward V.F. between the
filing of the original complaint and the date of the filing of the motion for permanent
custody by failing to regularly visit or communicate with V.F. when able to do so.
R.C. 2151.414(E)(3)–(4). Having affirmed the juvenile court’s findings that each of R.C.
2151.414(E)(1)–(4) apply in this case, we need not go through the juvenile court’s
other R.C. 2151.414(E) findings in detail. Any one of these factors, having been
found by clear and convincing evidence, required a finding that V.F. could not be
placed with Mother within a reasonable time or should not be placed with her. R.C.
2151.414(E).
C. Whether Granting Permanent Custody to CCDCFS Was in V.F.’s Best Interest
The best-interest determination focuses on the child, not the parent.
In re N.B., 2015-Ohio-314, at ¶ 59. In determining whether permanent custody is in
the best interest of the child, a juvenile court must consider “all relevant factors,”
including, but not limited to, the following:
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;
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;
the custodial history of the child;
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
whether any of the situations set forth in R.C. 2151.414(E)(7)–(11) apply.
R.C. 2151.414(D)(1)(a)–(e).
The juvenile court is required to consider each factor listed in
R.C. 2151.414(D)(1), but 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
Schafer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Further, only
one of the factors set forth in R.C. 2151.414(D)(1) need be resolved in favor of
permanent custody to support a finding that permanent custody is in a child’s best
interest and to terminate parental rights. In re J.C.-A., 8th Dist. Cuyahoga No.
109480, 2020-Ohio-5336, ¶ 80; In re A.B., 8th Dist. Cuyahoga No. 99836, 2013-
Ohio-3818, ¶ 17; In re N.B. at ¶ 53.
The juvenile court has considerable discretion in weighing the R.C.
2151.414(D)(1) factors. We review a juvenile court’s determination of a child’s best
interest for abuse of discretion. In re P.B., 8th Dist. Cuyahoga Nos. 109518 and
109519, 2020-Ohio-4471, ¶ 76, citing In re D.A., 8th Dist. Cuyahoga No. 95188,
2010-Ohio-5618, ¶ 47; see also In re J.B., 2013-Ohio-1704, at ¶ 97 (“[T]he discretion
that a trial court has in custody matters should be accorded the utmost respect, given
the nature of the proceeding and the impact the court’s determination will have on
the lives of the parties concerned.”).
Here, the juvenile court found by clear and convincing evidence that
a grant of permanent custody of V.F. to CCDCFS was in V.F.’s best interest.
Mother challenges this finding, arguing that she was working on
services to address the agency’s mental health and substance abuse concerns and
that her court-ordered treatment limited her ability to visit V.F. As for her mental
health, Mother points out that she was in a mental health facility under court order
from May to September 2021, and then she was engaged in services through Brighter Tomorrow until the time of the trial. As for substance abuse, Mother points
out that she voluntarily admitted a relapse in November 2021 and then she was
engaged in outpatient services from November 2021 to February 2022. Mother
points out that she participated in drug screens and, at the time of the trial, was in
court-ordered inpatient drug treatment.
The agency presented substantial, credible evidence that Mother has
not been willing or able to visit, communicate with or even ask about the well-being
of V.F. for substantial portions of his life. When the agency moved V.F. from a
relative’s home into foster care in January 2021, the agency could not even reach
Mother to establish a visitation schedule with V.F. After her discharge from
Northcoast, Mother seems to have re-engaged with the agency somewhat, starting
to engage with mental health and substance abuse services. But even knowing that
the agency was seeking permanent custody of V.F., Mother was only willing or able
to visit V.F. twice. She specifically declined to visit with V.F. at the end of January
2022, citing exhaustion. And when she would call the agency about V.F. between
October 2021 and January 2022, she would ask about the logistics of the visits but
would not ask about how V.F. was doing. Mother again fell out of contact with the
agency after January 2022, despite the agency’s attempts to reach her. Mother has
also seemingly continued to struggle with cocaine and her positive drug screen
seems to have corresponded in time with her declining to visit V.F. and falling out
of contact with the agency. It is commendable that Mother remained engaged in
mental health services from November 2021 through the date of the trial. But even these services combined with her outpatient substance use services twice a week did
not help Mother routinely visit, communicate with, or ask about the well-being of
V.F.
Mother’s falling completely out of touch with the agency so close to
the trial in this matter — and testing positive for cocaine around the same time — is
especially concerning. If Mother had a genuine affection for V.F. and a sincere desire
to parent him, then it is clear that something substantial was preventing her from
visiting him and engaging with the agency consistently. Based on the evidence in
the record, it was more than reasonable to conclude that Mother’s mental health and
substance abuse issues were the reasons for Mother’s disengagement.
Mother’s inpatient drug treatment may end up being a turning point
for Mother. But the mere existence of that possibility — in light of all the relevant
evidence — does not foreclose a finding that granting the motion is in V.F.’s best
interest. Indeed, Mother’s argument centers around Mother, not V.F., which is the
wrong focus.
Focusing on V.F., we note that he had been in CCDCFS custody for
nearly 18 months at the time of the trial — all of V.F.’s life. He had spent nearly 14
months — more than half his life — with the same foster family. The record reflects,
and Mother does not challenge, that V.F.’s foster parents and foster siblings have
seen to his physical and medical needs, developed a bond with him to the point that
V.F. “clings” to them and seen to his mental and emotional enrichment as well.
Moreover, this family is willing to adopt V.F. if the agency were to obtain legally secure permanent custody of him. V.F.’s guardian ad litem testified that V.F. has
“thrived” in their home and is “doing wonderfully.” She reported that she believed
it was in V.F.’s best interest to have permanent custody granted to the agency.
In light of all the relevant factors and evidence, the juvenile court did
not abuse its discretion in finding by clear and convincing evidence that granting the
agency permanent custody was in V.F.’s best interest.
Following a thorough review of the record and a consideration of
Mother’s appellate arguments, we conclude that the juvenile court’s findings that (1)
V.F. could not be placed with Mother within a reasonable time or should be not
placed with her and (2) a grant of permanent custody to the agency, not an extension
of temporary custody, would be in V.F.’s best interest are supported by clear and
convincing evidence and are not against the manifest weight of the evidence.
Accordingly, Mother’s assignment of error is overruled.
III. Conclusion
Having overruled Mother’s sole assignment of error, we affirm the
juvenile court’s grant of permanent custody of V.F. to the Cuyahoga County Division
of Children and Family Services.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas 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
EILEEN T. GALLAGHER, J., and EMANUELLA D. GROVES, J., CONCUR