[Cite as In re S.C., 2015-Ohio-4766.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102611
IN RE: S.C., ET AL.
Minor Children
[Appeal by Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD12917326 and AD12917329
BEFORE: S. Gallagher, J., Keough, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: November 19, 2015
ATTORNEY FOR APPELLANT
Michael B. Telep
4438 Pearl Road
Cleveland, OH 44109
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony R. Beery
Cuyahoga County Department of
Children and Family Services
4261 Fulton Parkway
Cleveland, OH 44144
Also listed:
Attorney for Children
Thomas Kozel
P.O. Box 534
North Olmsted, OH 44070
Guardian ad Litem
Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road
Suite 320
Rocky River, OH 44116
SEAN C. GALLAGHER, J.:
{¶1} Appellant mother appeals from an order awarding permanent custody of two
of her children, S.C. and J.C., to the Cuyahoga County Department of Children and
Family Services (“CCDCFS”). Upon review, we affirm.
{¶2} On October 16, 2012, CCDCFS filed a complaint for neglect and temporary
custody of S.C. and J.C. and their two older siblings because of mother’s alleged anger
management problem, mental health issues, and substance abuse problem, and father’s
criminal history. Mother was represented by a public defender in the matter, and
discovery was conducted.
{¶3} Following a hearing, the children were committed to the emergency
temporary custody of CCDCFS on November 7, 2012. The magistrate found reasonable
efforts were made to prevent removal of the children from the home, finding that “Mother
was referred for Family Preservation and for substance abuse assessment. Mother
refused Family Preservation and did not complete the substance abuse assessment.”
{¶4} The guardian ad litem for the children filed a report that detailed information
obtained from the children regarding mother’s substance abuse and her “whoopings” and
beatings of the children. Supplemental reports were filed through the course of the
proceedings that set forth further concerns pertaining to mother and the need to protect
the children.
{¶5} A case plan was developed, and services were offered in an effort to achieve
reunification. The record reflects mother had appropriate housing for the children and
their basic physical needs were being met. However, among the concerns noted were
“excessive discipline” and that mother was not addressing her mental health issues. The
case plan was revisited during the course of proceedings. In addition to mother’s
excessive manner of disciplining her children, mother’s substance abuse and mental
stability were added concerns. It was reported that mother smokes marijuana daily and
drinks alcohol. Services were afforded to mother to address the concerns and to reduce
the risk and safety concerns for the children.
{¶6} After an adjudicatory hearing, the magistrate issued a decision adjudicating
the children neglected. The trial court independently reviewed the matter and found
clear and convincing evidence in the record supported the magistrate’s decision. The
trial court adjudicated the children to be neglected in a judgment entry issued on April 25,
2013. Among the evidence the trial court found to support the adjudication was mother’s
evasive behavior when the agency attempted to contact her regarding physical abuse
allegations; mother’s failure to follow through with family preservation services; reports
from the children of mother’s “whoopings,” some of which involved the use of belts,
extension cords, and blind turners; testimony from the social worker that mother
threatened to beat the children in front of the social worker; evidence that mother
sabotaged the safety plan by bringing the children inappropriate clothing and by cursing
at the children over the phone; testimony regarding mother’s behavior and anger at the
children; mother’s failure to engage in family preservation and mental health services
despite her admission to having posttraumatic stress disorder and evidence showing she
has anger management issues; evidence that another child was removed from mother’s
care due to allegations of physical abuse; and testimony regarding mother’s conviction for
a DUI.
{¶7} Following a dispositional hearing, the magistrate issued a decision
committing the children to the temporary custody of CCDCFS, which was followed by
the judgment entry of the trial court on June 27, 2013. Mother did not file an appeal
from the adjudication of neglect and the award of temporary custody.
{¶8} Temporary custody was later extended for an additional period of six
months because there had not been substantial progress on the case plan by mother and
progress had not been made in alleviating the cause for removal of the children from the
home. The court found that mother had not benefitted from anger management and that
minimal progress had been made in family counseling. The permanency plan for the
children was reunification, and mother had regular visitation with the children.
{¶9} On April 28, 2014, CCDCFS filed a motion to modify temporary custody to
permanent custody. CCDCFS acknowledged mother had completed substance abuse
treatment, but indicated mother continued to screen positive for cocaine and marijuana.
Further mother had completed a psychological evaluation, but had failed to address
identified issues, including anger management and mental health issues. Additionally,
CCDCFS stated that mother had participated in individual and family counseling, but
failed to benefit.
{¶10} A report from the guardian ad litem recommended an award of permanent
custody to CCDCFS be granted for the children. The guardian ad litem later withdrew
because of a conflict with the children’s wishes, and a new guardian ad litem was
appointed. The new guardian ad litem filed a report recommending that permanent
custody of the children be granted to CCDCFS.
{¶11} The case proceeded to trial where evidence and testimony was presented in
the matter. The trial court issued a judgment entry on February 9, 2014, terminating
mother’s parental rights and granting permanent custody to CCDCFS.
{¶12} Mother appealed the trial court’s decision. Her sole assignment of error is
as follows:
The trial court erred in adopting a magistrate’s decision, over objection,
adjudicating the children as neglected children, when the state of Ohio
failed to prove neglect under R.C. 2151.03(A) by clear and convincing
evidence.
{¶13} Initially, we recognize that mother’s sole argument focuses upon the trial
court’s adjudication of the children as neglected. CCDCFS included a motion to dismiss
within its appellee’s brief, claiming an appeal from the adjudication of neglect was not
filed within 30 days of the adjudication order.1 Mother did not file a reply brief.
1
We note that the better practice would have been to file a motion to dismiss after the notice
of appeal was filed and prior to briefing in this matter.
{¶14} “An adjudication by a juvenile court that a child is ‘neglected’ or
‘dependent’ * * * followed by a disposition awarding temporary custody to a public
children services agency * * * constitutes a ‘final order’ within the meaning of R.C.
2505.02 and is appealable to the court of appeals * * *.” In re Murray, 52 Ohio St.3d
155, 556 N.E.2d 1169 (1990), syllabus. Furthermore, “an appeal of an adjudication
order of abuse, dependency, or neglect of a child and the award of temporary custody to a
children services agency pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of
the judgment entry pursuant to App.R. 4(A).” In re H.F., 120 Ohio St.3d 499,
2008-Ohio-6810, 900 N.E.2d 607, ¶ 18. Although the parent still retains the right to
appeal any award of permanent custody to a children services agency, that appeal is
limited to issues that arose after the adjudication order. Id.
{¶15} R.C. 2151.414(A)(1) provides that on a motion for permanent custody, the
court must conduct a hearing “to determine if it is in the best interest of the child to
permanently terminate parental rights and grant permanent custody to the agency that
filed the motion.” However, “[t]he adjudication that the child is an abused, neglected, or
dependent child and any dispositional order that has been issued in the case under section
2151.353 of the Revised Code pursuant to the adjudication shall not be readjudicated at
the hearing.” R.C. 2151.414(A)(1). Thus, the neglect finding was not subject to
readjudication at the time of the permanent custody hearing.
{¶16} The record reflects that on April 25, 2013, the trial court adjudicated the
children to be neglected. Thereafter, the magistrate issued a decision on June 4, 2013,
committing the children to the temporary custody of CCDCFS, which was followed by
the judgment entry of the trial court on June 27, 2013. Mother did not file a timely
appeal from the adjudication and initial disposition of the children. The adjudication
cannot be challenged through an appeal from the final dispositional order.
{¶17} Although the adjudication of neglect can no longer be challenged, we
recognize that appellant filed this appeal following the award of permanent custody.
Therefore, we shall review the trial court’s decision to award permanent custody to
CCDCFS.
{¶18} “An appellate court will not reverse a juvenile court’s termination of
parental rights and award of permanent custody to an agency if the judgment is supported
by clear and convincing evidence.” In re N.B., 8th Dist. Cuyahoga No. 101390,
2015-Ohio-314, ¶ 48, citing In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440,
¶ 24. Pursuant to R.C. 2151.414(B), a court may grant permanent custody of a child to
an agency if, after a hearing, the court determines, by clear and convincing evidence, that
one of the four conditions set forth in R.C. 2151.414(B)(1)(a)-(d) applies, and that
permanent custody is in the best interest of the child. In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, 862 N.E.2d 816, ¶ 23. “Clear and convincing evidence is that measure
or degree of proof which will produce in the mind of the trier of facts a firm beliefor
conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 477, 120 N.E.2d 118 (1954).
{¶19} As to each child in this case, the trial court determined, by clear and
convincing evidence, that the conditions under R.C. 2151.414(B)(1)(a), (b), and (d)
applied. Specifically, the court found that the children cannot be placed with either
parent within a reasonable time or should not be placed with the children’s parents; the
father has abandoned the children; and the children have been in the temporary custody of
CCDCFS for 12 or more months of a consecutive 22-month period. The court found that
the factors under R.C. 2151.414(E)(1), (4), (10), and (15) applied, and also considered
other relevant factors pursuant to R.C. 2151.414(E)(16).
{¶20} In conducting a best-interests analysis under R.C. 2151.414(D), “[t]he court
must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors.
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.
{¶21} Here, the trial court considered the relevant factors pursuant to R.C.
2151.414(D), including the interaction and interrelationship of the children with their
parents, siblings, relatives, and foster parents; the wishes of the children; the custodial
history of the children; the children’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of permanent custody;
and the factors set forth under R.C. 2151.414(E)(7) to (11).
{¶22} The trial court considered that the children had been in the custody of
CCDCFS for over two years; the children have had five placements and were currently in
an adoptive home; parenting was on mother’s case plan because mother was “whooping”
her children, and that despite mother finishing parenting classes, the quality of her
parenting showed no benefit and remained an ongoing concern; mother had not
successfully addressed her substance abuse problem; there were a number of concerns
from mother’s psychological assessments, including a threat to put bleach in the
children’s mouths for swearing; mother had not remedied the conditions causing
removal; the children had expressed concerns about returning to their mother; the
guardian ad litem for the children recommended that permanent custody be granted to
CCDCFS; and relative placements had not been successful. The court indicated that
recently another relative had come forward seeking legal custody, but noted numerous
concerns about this relative and a lack of credibility. The court determined that
CCDCFS had made reasonable efforts to prevent placement and/or make it possible for
the children to remain in or return to the home. The court also indicated that numerous
notations were made during trial “about the demeanor of the mother usually involving the
word ‘agitated’ or ‘concerning.’”
{¶23} Upon our review of the record, we find the trial court’s determinations were
supported by clear and convincing evidence. Although mother may have had appropriate
housing for the children and their basic physical needs were being met, the evidence and
testimony in the matter demonstrated that she had not benefitted from the services she
was offered. Concerns over the quality of her parenting, substance abuse, and mental
health issues were substantiated by the record. Mother had not made substantial steps
toward remedying the conditions causing the removal of the children from the home.
After more than two years, a safe and stable home and permanency are clearly in the
children’s best interest in this case. We affirm the trial court’s decision granting
permanent custody to CCDCFS and terminating mother’s parental rights.
{¶24} 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR