[Cite as In re Y.F., 2024-Ohio-5604.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
IN RE Y.F. : No. 114040 A Minor Child :
[Appeal by CCDCFS] :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED RELEASED AND JOURNALIZED: November 27, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD22905513
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellant.
Rachel A. Kopec, for appellee M.F. MICHAEL JOHN RYAN, J.:
The Cuyahoga County Division of Children and Family Services
(“CCDCFS” or “the agency”) appeals from the trial court’s June 12, 2024 judgment
denying the agency’s motion for permanent custody of the subject minor child, Y.F.,
and granting the motion of M.F., the child’s father (“Father”), for legal custody with
protective supervision to his parents, Y.F.’s grandparents. After a thorough review
of the facts and pertinent law, we reverse.
Procedural History
In May 2022, Y.F. was placed into the agency’s custody pursuant to
an ex parte telephonic order. Thereafter, the agency filed a complaint on
June 1, 2022, alleging that the child was abused and dependent and requesting a
dispositional order of temporary custody to CCDCFS. After a hearing, the juvenile
court granted emergency predispositional custody of Y.F. to CCDCFS. Thereafter,
the child was adjudicated abused and dependent and placed in the agency’s
temporary custody. Temporary custody was extended in May 2023, and in
June 2023, CCDCFS filed a motion to modify temporary custody to permanent
custody. The juvenile court held a trial on CCDCFS’s motion and thereafter issued
its judgment in which it denied the agency’s motion for permanent custody and
ordered the child placed in the legal custody of her paternal grandparents with
protective supervision. CCDCFS appeals, raising the following sole assignment of
error for our review: “The trial court judgment denying CCDCFS’s motion for permanent custody in favor of an order of legal custody to the grandparents with an
order of protective supervision is contrary to the evidence presented at trial.”
Factual History
The record demonstrates that Y.F. was born in early 2020. The
agency became involved with the family in 2022, after a domestically violent
incident between A.S., the child’s mother (“Mother”), and Father occurred; Y.F. was
two years old at the time. The child was placed with the paternal grandparents with
a safety plan.1 The safety plan set forth that neither Mother nor Father were
permitted to be with Y.F. unsupervised. The grandparents violated the safety plan
by allowing Father to take Y.F. for a long weekend when they were going out of town.
After they returned from their trip, the grandparents self-reported and Y.F. was
removed from their care in May 2022. Following the child’s removal from her
grandparents, a case plan was developed for Mother and Father in an effort to
effectuate a permanency plan of reunification.
Mother’s case plan included services to help address mental health,
substance abuse, basic needs, parenting, and domestic violence. In the fall of 2023,
Mother gave birth to another child, U.S.; U.S. was born exposed to drugs, removed
1 The record demonstrates that prior to CCDCFS’s involvement with the family, Y.F. was cared for by the paternal grandparents for approximately six weeks after her birth because Mother and Father had issues that prevented them from initially caring for her. from Mother’s care, and placed with the same foster family as Y.F.2 Mother was
asked to submit to random drug screens, with which she was compliant; however,
the last drug screen that the agency had for her — February 2024 — was positive.
Further, just prior to trial, Mother self-reported that she was still using marijuana.
Regarding basic needs, Mother was able to obtain housing, but she
was not employed. At the time of trial, Mother reported that she was receiving $940
monthly in SSI benefits. Mother’s basic needs were an ongoing concern to CCDCFS
because her monthly rent obligation, exclusive of utilities, was $950. Mother did
complete the parenting portion of her case plan but, as will be discussed, due to
Y.F.’s aggressive behavior after her visits with Mother, Mother’s visitation with the
child was limited. Mother completed domestic violence services, and CCDCFS did
not have any concerns about that portion of her case plan at the time of trial.
Regarding mental health, Mother was diagnosed with post-traumatic
stress disorder (“PTSD”), anxiety, cannabis use disorder, and intermittent explosive
disorder. She had been involved with a provider, but her participation was
inconsistent, which led to her discharge. CCDCFS asked Mother to reengage, which
she did, but she was again inconsistent. At the time of trial, the agency had ongoing
concerns for Mother’s mental health.
2 Y.F. and U.S. have different fathers. Mother’s parental rights of U.S. were terminated, and Mother has appealed in a companion case to this case; Mother also challenges the juvenile court’s order of legal custody of Y.F. to the paternal grandparents in that case. See In Re Y.F., et al., 8th Dist. Cuyahoga No. 114140. Father was incarcerated in January 2023 (for charges not related to
this case); according to grandmother, he is not expected to be released until 2027.
Prior to his incarceration, he had an opportunity to work on his case plan, which
included services to help address mental health, domestic violence, parenting, and
basic needs. Father refused to engage in mental health and domestic violence
services and both remained a concern for the agency throughout the case. He
started parenting and basic needs services but then refused the services. Father had
supervised weekly visitation with Y.F. He initially attended the visits, but then
stopped (prior to his incarceration).
After Y.F. was removed from her grandparents care, she was placed
with a foster family in whose care she has continually remained.3 The child was
examined by a medical professional prior to her placement with the foster family;
the examination did not include a pelvic exam.
Y.F.’s foster mother testified at trial. According to the foster mother,
Y.F. was nonverbal when she came into the family’s care at two years old. The child
was engaging in aggressive behaviors, such as biting and screaming. She would
“hide” in a corner as if she was “protecting herself,” had “extreme” nightmares, and
initially appeared afraid of the foster father, especially at bedtime. Y.F. also
displayed aggressive behaviors at her daycare provider.
3 This court granted a stay of the juvenile court’s judgment granting legal custody of Y.F. to the grandparents during the pendency of this appeal. Within a day of Y.F. being with the foster family, the foster mother
suspected that the child had a yeast infection and took her to a doctor. The foster
mother testified that Y.F. displayed aggressive behaviors at the visit with the doctor.
It was confirmed at the visit that the child had a severe yeast infection. In July 2022,
Y.F. began treating with a therapist, Constance Oliphant.
Oliphant and the agency’s case worker assigned to this case, Amy
Norris, testified at trial. After assessing Y.F., Oliphant found that the child was
experiencing PTSD symptoms. According to Oliphant, the child had difficulty
communicating specifics that might have explained her symptoms, but Oliphant was
able to glean from Y.F. that she felt safe with her foster parents and wanted to stay
with them.
When Y.F. was placed with the foster parents, she initially continued
having visits with Mother and her grandparents. The visits were supervised and
generally occurred together — that is, Mother and grandparents would visit with Y.F.
at the same time. The record demonstrates that Mother and the paternal
grandparents had a difficult relationship, but Mother was initially open to them
visiting with Y.F. The record further demonstrates that there were times when the
grandparents were not present at the visits, and Y.F. visited with only Mother.
According to the foster mother, Y.F.’s aggressive behaviors would worsen after the
visits, and especially after the visits where the grandparents were present.
Oliphant testified to the same escalation in Y.F.’s behavior after visits
with Mother and the grandparents. One of the concerning things were nightmares Y.F. was having in which she saw a “monster.” Oliphant presented a photographic
“lineup” to Y.F. with pictures of various people in her life including Mother, Father,
foster mother, foster father, and the paternal grandparents; pictures of Y.F.’s
maternal relatives were not included because they were not involved in her life.
Oliphant asked Y.F. if she saw the “monster” in the lineup, and Y.F. identified
grandfather. Oliphant testified that she did not take Y.F. to be a “liar” or as having
been “coached.”
Y.F.’s behavior escalated in a particularly concerning manner after
one of the visits with the grandparents. Specifically, after the visit Y.F. engaged in
“graphically violent sexualized behavior.” The child also regressed with her potty-
training efforts. This behavior prompted Oliphant to write a letter to the agency
suggesting that the visits be limited or stopped altogether. Mother, who as
mentioned, initially was open to the grandparents visiting with Y.F. and shared her
visiting time with them, also expressed her desire for the grandparents’ visits to stop.
The agency stopped the grandparents’ visits and later, also at Oliphant’s request,
limited Mother’s visitation. Oliphant testified that Y.F.’s behavior markedly
improved after her visits with the grandparents ceased and same after Mother’s
visits were limited.
Norris, the agency worker assigned to the case, corroborated much of
Oliphant’s testimony regarding Y.F.’s concerning behavior and how it escalated after
visits with the grandparents. Norris supervised the visits and admitted that she did
not see the grandparents engaging inappropriately with Y.F. Regarding Mother’s visits with Y.F., Norris testified that Y.F. did
enjoy some of the visits, especially when Mother had gifts for her. However, at other
times, the visits were upsetting to Y.F. because Mother would have “outbursts.”
Norris described one particularly upsetting visit in April 2024. Y.F. had a bathroom
accident. Mother became upset because she thought that Y.F.’s accident was due to
what she believed was Y.F.’s “trauma due to sexual abuse.” Mother ran at Y.F., who
was running toward a wall, and the two fell into the wall. Mother then picked Y.F.
up in a “very physical” manner. Y.F. was scared and hid under a table; Mother
continued yelling and, despite Norris attempting to calm her down and redirect her,
Mother disengaged for the remainder of the visit.
It is intimated in the record that Mother believed the grandfather had
sexually abused Y.F. prior to the agency’s involvement with the family in 2022. The
record indicates that Mother had reported that the grandfather made inappropriate
sexual comments to her (the Mother). Norris testified that CCDCFS investigated the
grandfather for sexual abuse and found the claim unsubstantiated. Norris testified
that unsubstantiated does not mean that nothing happened; rather, it means that
the agency could not reach a conclusive determination. There is no process to appeal
the determination. According to Norris, part of the reason for the unsubstantiated
determination was because Y.F. was not able to articulate well. Norris also
corroborated Oliphant’s testimony that Y.F.’s concerning behavior decreased after
her visitations with the grandparents stopped. Father presented his parents’ testimonies on his behalf.
Grandmother testified that grandfather works from home and she works outside of
the house. They have been involved in Y.F.’s life since her birth, grandfather had
been her primary caregiver, and Y.F. and grandfather were especially bonded.
Grandmother testified that she was unaware of the safety plan when she and
grandfather allowed Father to take Y.F. unsupervised for a long weekend.
Grandfather corroborated grandmother’s testimony about his bond
with Y.F. and denied that he ever abused her. He testified that he thought the safety
plan meant that only Mother could not be with Y.F. unsupervised. Grandfather
admitted to a misdemeanor conviction for exposing himself to a “rather attractive”
“20 something” woman. He was ordered to counseling as a result of the conviction.
Mother did not present any witnesses.
Prior to trial, Y.F.’s guardian ad litem (“GAL”) submitted a report to
the court recommending that it grant permanent custody of Y.F. to CCDCFS. The
GAL maintained her position at trial.
Juvenile Court’s Judgment
Posttrial, the court issued its judgment in which it found “that the
previous order placing the child in the temporary custody of the Division of Children
and Family Services is terminated as it is no longer in the child’s best interest.” The
court denied CCDCFS’s motion for permanent custody and granted Father’s motion
for legal custody to paternal grandparents. Law and Analysis
An appellate court reviews a juvenile court’s decision regarding a
motion for permanent custody of a child to a children’s services agency on
sufficiency-of-the-evidence and/or manifest-weight-of-the-evidence grounds. In re
Z.C., 2023-Ohio-4703, ¶ 18. In this appeal, CCDCFS maintains that the juvenile
court’s decision was against the manifest weight of the evidence. In reviewing a
juvenile court’s decision regarding permanent custody on weight-of-the-evidence
grounds,
the appellate court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.
Id. at ¶ 14, citing Eastley v. Volkman, 2012-Ohio-2179, ¶ 10.
Under R.C. 2151.414, clear and convincing evidence is the standard of
proof to be used by a juvenile court in determining whether the statutory
requirements for permanent custody are met. Clear and convincing evidence is
defined as
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986).
R.C. 2151.414 provides a two-prong analysis to be applied by a
juvenile court in adjudicating a motion for permanent custody. In re S.C., 2018- Ohio-2523, ¶ 20 (8th Dist.), citing R.C. 2151.414(B). The first prong authorizes the
juvenile court to grant permanent custody of a child to the public agency if, after a
hearing, the court determines, by clear and convincing evidence, that any of the
following factors apply: (a) the child is not abandoned or orphaned, but the child
cannot be placed with either parent 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 12 or more months of a consecutive 22-
month period; or (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. R.C. 2151.414(B)(1)(a)-(e). “Only one of the factors must be
present to satisfy the first prong of the two-part analysis for granting permanent
custody to an agency.” In re D.H., 2021-Ohio-3821, ¶ 27 (8th Dist.), citing In re
L.W., 2017-Ohio-657, ¶ 28 (8th Dist.).
CCDCFS contends that it presented clear and convincing evidence of
the finding under R.C. 2151.414(B)(1)(a), that Y.F. cannot be placed with either
parent within a reasonable time or should not be placed with the child’s parents. “To
make a finding under (B)(1)(a), R.C. 2151.414(E) enumerates 15 factors for the court
to consider.” In re D.G., 2023-Ohio-4427, ¶ 24 (8th Dist.). The R.C. 2151.414(E) factors that CCDCFS contends were evident by
clear and convincing evidence are the following: (1) failure to remedy (R.C.
2151.414(E)(1)); (2) chronic chemical dependency/mental illness (R.C.
2151.414(E)(2)); (3) lack of commitment (R.C. 2151.414(E)(4)); (4) abandonment
(R.C. 2151.414(E)(12)); (5) incarceration and unavailability (R.C. 2151.414(E)(12);
and (6) other relevant factors (R.C. 2151.414(E)(16)). We consider each in turn.
Regarding failure to remedy, the record demonstrates that Y.F. was
removed from her parents’ care due to issues of domestic violence, substance abuse,
mental health, and parenting concerns and that a case plan was implemented to
include services for Mother to address these issues. Mother’s substance abuse issue
remained a concern throughout the case. Mother gave birth to another child, U.S.,
in October 2023; U.S. was born exposed to drugs. Mother tested positive for drugs
in February 2024, and just prior to trial she reported that she was still using
marijuana.
Mother was referred to mental health services based on her diagnoses
of PTSD and anxiety and was involved with a provider, but her engagement was
inconsistent. In August 2022, she was terminated from counseling services due to
her noncompliance and did not reengage until September 2023; she was not
consistent with her reengagement, however. A note from an April 2024 counseling
session noted that the “overall impression of treatment demonstrates minimal
improvement as evidenced by ongoing challenges in managing stress using healthy
coping strategies.” The abovementioned also demonstrated, by clear and convincing
evidence, that Mother had a chronic chemical dependency and mental health issues,
a factor set forth in R.C. 2151.414(E)(2), that were still unresolved at the time of trial.
Thus, clear and convincing evidence supports findings under R.C. 2151.414(E)(1)
and (2) relative to Mother.
Regarding Father, he had an opportunity prior to his incarceration to
work on his case plan, which included services to help address mental health,
domestic violence, parenting, and basic needs. Father refused to engage in mental
health and domestic violence services and both remained a concern for the agency
throughout the case. He started parenting and basic needs services but then refused
the services. This record supports a finding, by clear and convincing evidence, that
Father failed to remedy under R.C. 2151.414(E)(1).
Further, despite being afforded an opportunity to visit Y.F. prior to
his incarceration, Father failed to see the child since August 2022. The record
supports a determination, by clear and convincing evidence, under R.C.
2151.414(E)(4), that Father had a lack of commitment to Y.F. Moreover, “a child
shall be presumed abandoned when the parents of the child have failed to visit or
maintain contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days.”
R.C. 2151.011(C). Father stopped visiting Y.F. in August 2022. Thus, the record
supports a determination by clear and convincing evidence under
R.C. 2151.414(E)(10) that Father abandoned the child. Because of his incarceration and unavailability, the record also
supports a determination under R.C. 2151.414(E)(12) because he will be unavailable
for at least 18 months after the dispositional hearing.
Under the catchall provision of R.C. 2151.414(E)(16), it is relevant that
the child expresses fear of Mother and has stated that she feels safe with the foster
family and wants to stay with them. Further, Y.F. had aggressive and sexualized
behaviors after her visitations with the grandparents.
On this record, CCDCFS presented clear and convincing evidence that
at least one of the R.C. 2151.414(E) factors applied for both Mother and Father.
“Once a court determines, by clear and convincing evidence, that one of the
enumerated factors exists, the court must enter a finding that the child cannot or
should not be placed with either of his [or her] parents within a reasonable time.”
In re Glenn, 139 Ohio App.3d 105, 113 (8th Dist. 2000). Having found that CCDCFS
presented evidence to satisfy the first prong of a permanent custody motion, we turn
to the second prong.
Under the second prong of R.C. 2151.414, the juvenile court must
consider the factors listed in R.C. 2151.414(D), as well as other relevant factors, to
determine, by clear and convincing evidence, whether it is in the child’s best interest
to grant permanent custody to the agency pursuant to R.C. 2151.414(D). In re H.G.,
2024-Ohio-3408, ¶ 16 (8th Dist.). Those factors are:
(a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; (b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period . . .;
(d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Although a trial court is required to consider each of the
R.C. 2151.414(D)(1) factors in making its permanent-custody determination, “there
is not one element that is given greater weight than the others pursuant to the
statute.” In re Schaefer, 2006-Ohio-5513, ¶ 56. Moreover, only one factor needs to
be resolved in favor of permanent custody in order to find that permanent custody
is in the child’s best interest. In re S.C., 2015-Ohio-2410, ¶ 30 (8th Dist.).
The trial court in this case summarily found “that the previous order
placing the child in temporary custody of the Division of Children and Family
Services is terminated as it is no longer in the child’s best interest,” without mention
or discussion of the R.C. 2151.414(D)(1) factors. We recognize that the Ohio
Supreme Court has held that R.C. 2151.414(D)(1) “does not require a juvenile court
to expressly discuss each of the best interest factors in R.C. 2151.414(D)(1)(a)
through (e).” In re A.M., 2020-Ohio-5102, ¶ 31. However, the Court stated that it ”strongly encourage[s]” juvenile courts to address the best-interest factors. Id. at ¶
32. But even if a juvenile court does not address the factors, a reviewing court “must
be able to discern from the magistrate or juvenile court’s decision, and the court’s
judgment entry,” that the court considered the listed factors. Id. at ¶ 31. The trial
court’s summary determination that agency custody is not in Y.F.’s best interest,
without more, does not allow us to find that it considered the best interest findings.
After review, we find that all of the best interest factors were
implicated in this case and weighed in favor of granting permanent custody to
CCDCFS. Under R.C. 2151.414(D)(1)(a), which considers the interaction and
interrelationship with significant persons in the child’s life, the record reflects that
Y.F. (1) feared Mother and did not want to live with her, (2) felt safe with her foster
family and was bonded with her younger sister, U.S., who was also placed with the
foster family, (3) Father stopped visiting with Y.F., and (4) Y.F. identified
grandfather as the “monster” she saw in her nightmares.
Regarding R.C. 2151.414(D)(1)(b), which considers the child’s wishes
as expressed by the child or the child’s GAL, as mentioned, Y.F. expressed fear of
Mother, stated that she did not want to live with her and that she felt safe and wanted
to live with the foster family. The GAL also opined that she believed permanent
custody was in Y.F.’s best interest.
Considering the child’s custodial history under R.C.
2151.414(D)(1)(c), the record shows that Y.F. was placed in CCDCFS’s care on May
31, 2022, and the trial court’s judgment was filed on June 12, 2024; during this time Y.F. continuously remained in the agency’s custody. Thus, Y.F. had been in agency
custody for over two years.
Under R.C. 2151.414(D)(1)(d), which considers the child’s need for a
legally secure placement and whether that can be achieved without a grant of
permanent custody, in June 2024 when the trial court issued its judgment, Y.F.
could no longer be maintained in temporary custody. See R.C. 2151.415(D)(4)
(“[T]he 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, regardless of whether any
extensions have previously been ordered . . . .”).
As discussed, Father was unavailable due to his incarceration and, in
any event, had not successfully completed his case plan goals. Mother likewise had
not successfully completed her case plan goals, Y.F. was fearful of Mother and
indicated that she did not want to be returned to her care; she felt safe with her foster
family and wished to stay with them. Further, the GAL recommended permanent
custody to the agency.
Under R.C. 2151.414(D)(1)(e), consideration is to be given as to
whether any factors under R.C. 2151.414(E)(7) to (11) apply. Subsection (E)(10) —
whether the parent has abandoned the child — applies. As discussed, prior to his
incarceration, and with the opportunity to visit Y.F., Father stopped visiting her for
more than 90 days. On this record, the weight of the evidence weighed in favor of granting
permanent custody to CCDCFS. We note that “[t]he willingness of a relative to care
for a child does not alter what a court considers in determining whether to grant
permanent custody.” In re E.C., 2016-Ohio-4870, ¶ 39 (8th Dist.). The same best-
interest factors for permanent custody set forth in R.C. 2151.414(D) can be used as
guidance for legal custody, which is considered under the lesser standard of
preponderance of the evidence. In re B.D., 2017-Ohio-8663, ¶ 25-26. Even
considering the best-interest factors under the lesser standard, we find that the trial
court erred in granting legal custody to the grandparents.
In reaching our decision, we are mindful of the discretion that
juvenile courts have in custody proceedings. But we are also mindful that a stated
purpose of R.C. Ch. 2151 is “[t]o provide for the care, protection, and mental and
physical development of children.” We believe our decision will effectuate that for
Y.F.
CCDCFS’s sole assignment of error is sustained.
Judgment reversed.
It is ordered that appellant recover from appellee 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. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, P.J., and EILEEN T. GALLGHER, J., CONCUR