In re L.W.

[Cite as In re L.W., 2017-Ohio-657.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104881

IN RE: L.W. AND S.W.
Minor Children

[Appeal By C.W., Father]

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 14912483 and AD 14915289

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

RELEASED AND JOURNALIZED: February 23, 2017
ATTORNEY FOR APPELLANT

John H. Lawson
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Joseph C. Young
Assistant Prosecuting Attorney
Cuyahoga County Dept. Of Children and Family Services
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115

Guardian Ad Litem

Amy L. Nash
1180 Winston Road
South Euclid, Ohio 44121
EILEEN T. GALLAGHER, J.:

{¶1} Appellant, C.W. (“Father”), appeals from an order of the common pleas

court, juvenile division, terminating his parental rights and placing his two daughters in the

permanent custody of appellee, Cuyahoga County Department of Children and Family

Services (“CCDCFS” or the “agency”). Father raises the following eight assignments of

error for our review:

1. The trial court erred in denying the appellant/Father’s motion for legal
custody to paternal grandmother for not submitting a signed statement of
understanding pursuant to R.C. 2151.353(A)(3).

2. The trial court’s decision to deny legal custody to the paternal
grandmother and to grant the agency’s permanent custody motion was
against the manifest weight of the evidence.

3. The trial court erred and abused its discretion by permitting the agency’s
social worker to testify about the Alabama OTI report.

4. The Guardian Ad Litem’s report and investigation failed to comply with
Sup.R. 48(D) and R.C. 2151.414(C).

5. The trial court erred and abused its discretion by failing to swear the
Guardian Ad Litem in before she testified or was cross-examined, in
violation of Ohio Rules of Evidence 603.

6. The trial court erred and abused its discretion by permitting the
Guardian Ad Litem to utilize a photograph which was never authenticated as
the original per Evid.R. 1002, and never marked it as an exhibit or moved it
into evidence.

7. The trial court erred by failing to mark Guardian Ad Litem’s report as an
exhibit, pursuant to the Ohio Rules of Evidence, Ohio case law, and Ohio
Juvenile Rules which means the report should not have been considered by
the trial court in rendering its decision.
8. The trial court erred by granting the agency’s motion for permanent custody against
Father, as the agency failed to meet its burden of either prong required under R.C.
2151.414.

{¶2} After careful review of the record and relevant case law, we vacate the

juvenile court’s judgment and remand for further proceedings consistent with this opinion.

I. Procedural History

{¶3} In Cuyahoga J.C. Nos. AD14912483 and AD14915289, CCDCFS filed

complaints alleging that the minor children, L.W. (date of birth November 2, 2013), and

S.W. (date of birth December 8, 2014) were . The complaints requested a disposition of

temporary custody to CCDCFS and included a motion for predispositional temporary

custody. Following separate hearings, the trial court granted CCDCFS predispositional

temporary custody for each child.

{¶4} Subsequently, Father and the children’s mother, D.B. (“Mother”), stipulated to

the complaints as amended, and the trial court issued separate entries adjudicating L.W. and

S.W. dependent. In addition, Mother and Father stipulated to the requested disposition of

temporary custody and the trial court issued separate entries committing L.W. and S.W. to

the temporary custody of CCDCFS. While the children remained in the temporary custody

of CCDCFS, the agency developed a case plan for the purposes of reunification.

{¶5} Following the parties’ failure to comply with their respective case plans,

CCDCFS filed a motion to modify L.W.’s and S.W.’s temporary custody to permanent

custody. In December 2015, Father filed a motion for legal custody to the children’s

paternal grandmother, S.H.
 {¶6} In June 2016, the court held a dispositional hearing on the agency’s motion for

permanent custody and Father’s motion for legal custody to S.H. At the time of the

hearing, Mother was serving a six-month sentence in a Community Based Correctional

Facility.

{¶7} At the hearing, CCDCFS social worker, Selina Wright (“Wright”), testified

that L.W. and S.W. came into the agency’s custody based on concerns with Mother and

Father’s parenting and whether or not it was safe for the children to return home. Wright

explained that the agency’s concerns arose from prior dependancy adjudications relating to

Mother’s two older children, D.B. and Da.B. Father is not the biological father of D.B.

or Da.B.

{¶8} In this matter, Father’s case plan included objectives for domestic violence,

substance abuse, and parenting education. Wright testified that Father completed a

substance abuse assessment and outpatient treatment in 2015, but subsequently tested

positive for cocaine and marijuana use. As a result of his continuing substance abuse

issues, CCDCFS sought additional assessments to determine if more appropriate treatment

was required. Father, however, did not complete a further substance abuse assessment.

In addition, Wright testified that Father completed domestic abuse counseling but failed to

complete the parenting education component of his case plan.

{¶9} Based on her observations, Wright testified that she did not believe Father was

capable of providing care for the children because “the case plan services have not been

completed,” and Father did not have “the housing arrangement to be able to care for them
right now.” While Wright acknowleged that Father’s visits with the children “go well,”

Wright opined that permanent custody to CCDCFS was in the best interests of the children

because “neither parent has completed the case plan services and neither parent is ready to

care for the children at this time.” Wright further noted that L.W. and S.W. were placed

with D.B. and Da.B. and that the four children have strongly bonded with each other.

{¶10} With respect to the children’s paternal grandmother, S.H., Wright testified

that an out-of-state investigation (“OTI”) was completed at S.H.’s home in the state of

Alabama. Wright testified that following the completion of the investigation, the Alabama

agency did not approve S.H.’s home for placement based on concerns with her health, her

mobility, and her thoughts on discipline.

{¶11} S.H. testified that she sought legal custody of L.W. and S.W. and that it was

her intent to raise the children until they reached the age of majority. S.H. expressed

concerns with the conclusions reached by the Alabama agency, stating that she was more

than capable of caring for L.W. and S.W.

{¶12} S.H. testified that she is a registered pharmacist with degrees from

Kalamazoo College and Howard University. She has been married to her husband, L.H.,

for 14 years and has raised five children in her home. S.H. testified that she and her

husband are retired and earn retirement income. S.H. explained that she and L.H.

purchased their home in Alabama with raising the children in mind and that there are a

“room, clothes, and beds waiting for [L.W.] and [S.W.].” S.H. further stated that

although she “walks with a limp” as a result of a past motor vehicle accident, she is
receiving physical therapy for her arthritic symptoms and is in otherwise excellent health.

{¶13} With respect to the Alabama agency’s concerns with S.H.’s thoughts on

discipline, S.H. testified that during a class for future foster parents, she expressed that

there may be situations where it would be appropriate to “spank” a child for safety

purposes. S.H., however, expressed that she felt tricked by the questions posed during

the class. S.H. reiterated that she does not believe spanking is an appropriate form of

discipline and that she has never spanked any of her children in the past.

{¶14} The trial court also considered the recommendations of the children’s

guardian ad litem (the “GAL”). In June 2016, the GAL submitted a report in which she

recommended that the trial court grant CCDCFS’s request for permanent custody. She

indicated that the children “are very bonded to their foster family and to each other.”

With respect to Father, the GAL opined that Father did not benefit from the services

provided in his case plan based on an unspecified incident of domestic violence and

positive drug tests in August and December of 2015. The GAL further indicated that

there were no relatives that she was aware of that were “willing and able to take custody of

the children.”

{¶15} Following S.H.’s testimony, the trial court asked the GAL for her final

summation and recommendation. The GAL expressed concerns with separating all four

of the children. She stated that she “might consider recommending [S.H.] get all the

children,” but ultimately opined that permanent custody was in the children’s best interests

because S.H.’s motion for legal custody was limited to L.W. and S.W.
 {¶16} At the conclusion of the hearing, the trial court issued separate journal entries

terminating Mother’s and Father’s parental rights and ordering L.W. and S.W. to be placed

in the permanent custody of CCDCFS. In each journal entry, the trial court stated, in

pertinent part:

Upon considering the interaction and interrelationships of the child
with the child’s parents, siblings, and foster parents; the wishes of the child;
the custodial history of the child, including whether the child has been in
temporary custody of a public children services agency or private child
placing agency under one or more separate orders of disposition for twelve
or more months of a consecutive twenty-two month period; the child’s need
for a legally secure permanent placement and whether the type of placement
can be achieved without a grant of permanent custody; and the report of the
Guardian Ad Litem, the Court finds by clear and convincing evidence that a
grant of permanent custody is in the best interests of the child and the child
cannot be placed with one of the child’s parents within a reasonable time or
should not be placed with either parent.

{¶17} In support of its judgment, the trial court found that L.W. and S.W. have

formed a bond with the foster parents and that Mother and Father have failed to

“substantially remedy the conditions causing the child[ren] to be placed outside [their]

home.” The court noted that Mother was incarcerated at the time of the permanent

custody hearing and that Father has a “chronic chemical dependency” that is so significant

that it makes him “unable to provide an adequate permanent home for the children.”

{¶18} The court further denied Father’s motion for legal custody to the children’s

paternal grandmother based on the Alabama OTI report and S.H.’s failure to submit and

sign a Statement of Understanding for Legal Custody pursuant to R.C. 2151.353(A)(3).

{¶19} Father now appeals from the trial court’s judgment.

II. Law and Analysis
 {¶20} On appeal, Father collectively argues the trial court’s decision to deny legal

custody to S.H. and to grant the agency’s permanent custody motion was not clearly and

convincingly supported by the evidence. For ease of discussion, we will address Father’s

assignments of error out of order and together where appropriate.

{¶21} We take our responsibility in reviewing cases involving the termination of

parental rights and the award of permanent custody very seriously. “‘All children have

the right, if possible, to parenting from either [biological] or adoptive parents which

provides support, care, discipline, protection and motivation.’” In re J.B., 8th Dist.

Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hitchcock, 120 Ohio App.3d

88, 102, 696 N.E.2d 1090 (8th Dist.1996). Likewise, a “‘parent’s right to raise a 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).

By terminating parental rights, the goal is to create “a more stable life” for dependent

children and to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67,

citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860,

5 (Aug. 1, 1986). However, termination of parental rights is “‘the family law equivalent

of the death penalty in a criminal case.’” In re J.B., at ¶ 66, quoting In re Hoffman, 97

Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. It is, therefore, “an alternative

[of] last resort.” In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21.

{¶22} Initially, Father argues the trial court failed to determine whether or not S.H.
was a “suitable” relative pursuant to R.C. 2151.412(H)(2)1 before granting permanent

custody to CCDCFS. Contrary to Father’s position, however, R.C. 2151.412(H)(2)

applies only to case plans, not custody determinations. In re A.R., 8th Dist. Cuyahoga

No. 103450, 2016-Ohio-1229, ¶ 21, citing In re C.H., 8th Dist. Cuyahoga No. 103171,

2016-Ohio-26, ¶ 26. While a trial court “must find by clear and convincing evidence that

the parents are not suitable placement options, the court is not required to invoke the same

standard with regard to a grandparent.” In re A.D., 8th Dist. Cuyahoga No. 85648,

2005-Ohio-5441, ¶ 12.

{¶23} To the extent Father argues the trial court erred by failing to place the

children in the legal custody of S.H., we note that S.H. is not a party to this appeal.

Generally, “[a] parent has no standing to assert that the court abused its discretion by

failing to give the [paternal grandmother] legal custody; rather, the challenge is limited to

whether the court’s decision to terminate parental rights was proper.” In re S.G., 3d Dist.

R.C. 2151.412(H)(2) provides in pertinent part:
1

(H) In the agency’s development of a case plan and the court’s review of the case plan,
the child’s health and safety shall be the paramount concern. The agency and the court
shall be guided by the following general priorities:

***

(2) If both parents of the child have abandoned the child, have relinquished custody of
the child, have become incapable of supporting or caring for the child even with
reasonable assistance, or have a detrimental effect on the health, safety, and best
interest of the child, the child should be placed in the legal custody of a suitable
member of the child’s extended family[.]
Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 52, citing In re Pittman, 9th Dist. Summit No.

20894, 2002-Ohio-2208, ¶ 70. Thus, Father’s challenge to the trial court’s judgment

granting CCDCFS permanent custody in this case is limited to whether the trial court

improperly terminated his parental rights.

{¶24} With these principles in mind, we now review the trial court’s judgment

awarding CCDCFS permanent custody and terminating Father’s parental rights.

A. Standard for Terminating Parental Rights and Awarding Permanent Custody to
CCDCFS

{¶25} “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,

at ¶ 48, citing In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. “‘Clear

and convincing evidence’ is evidence that ‘will produce in the mind of the trier of facts a

firm belief or conviction as to the allegations sought to be established.’” In re T.B., 8th

Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28, quoting Cross v. Ledford, 161 Ohio St.

469, 477, 120 N.E.2d 118 (1954).

{¶26} R.C. 2151.414 provides guidelines a trial court must follow in deciding a

motion for permanent custody. The statute sets forth a two-prong analysis to be applied

by a juvenile court in adjudicating a motion for permanent custody. R.C. 2151.414(B).

{¶27} First, R.C. 2151.414 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 these four 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;

or (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. R.C. 2151.414(B)(1)(a)-(d).

{¶28} Only one of the four factors must be present for the first prong of the

permanent custody analysis to be satisfied. In re J.B., 8th Dist. Cuyahoga No. 98546,

2013-Ohio-1704, at ¶ 72. When any of these four factors exists, the trial court proceeds

to analyze whether, by clear and convincing evidence, it is in the best interests of the child

to grant permanent custody to the agency under R.C. 2151.414(D).

1. First Prong: R.C. 2151.414(B)(1) Factors

{¶29} In this case, the trial court found that R.C. 2151.414(B)(1) was satisfied

because L.W. and S.W. could not be placed with either parent within a reasonable period

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

{¶30} In determining whether a child cannot be placed with his or her parents

within a reasonable period of time or should not be placed with his or her parents, courts

look to R.C. 2151.414(E). Pursuant to R.C. 2151.414(E), if the trial court determines, by

clear and convincing evidence, that one or more of factors specified in R.C.

2151.414(E)(1) through (16) exists as to each of the child’s parents, then the trial court

“shall enter a finding that the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent.” In re V.C., 8th Dist. Cuyahoga Nos.

102903, 103061, and 103367, 2015-Ohio-4991, ¶ 42. In this case, the trial court found,

among other factors, that R.C. 2151.414(E)(1) applied to both Mother and Father.

{¶31} R.C. 2151.414(E)(1) states:

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 parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to the
parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.

{¶32} Limiting our review of the circumstances involving Father, we find the

record contains ample evidence to support the trial court’s finding that Father “has failed

continuously and repeatedly to substantially remedy” the conditions that caused L.W. and

S.W. to be placed outside their home. At the permanent custody hearing, social worker

Wright testified that CCDCFS provided Father with a case plan that was designed to assist

him in remedying the conditions that caused the children to be placed with the agency.

Specifically, Father’s case plan included objectives for substance abuse assessment and

treatment, domestic violence counseling, and parenting education. Although Father

substantially completed programs addressing some of these issues, the record reflects that

he failed to complete the parenting education component of his case plan and stopped

participating in his substance abuse assessment and treatment after he tested positive for
cocaine and marijuana. Wright testified that she did not believe Father was capable of

providing care for the children based on his failure to complete his case plan services and

his inability to obtain a suitable housing arrangement. The GAL agreed with Wright,

opining that Father had not benefitted from his case plan.

{¶33} Accordingly, the record clearly and convincingly supports the trial court’s

determination that the children cannot be placed with either parent within a reasonable

time or should not be placed with either parent.

2. Second Prong: Best Interest of the Child Analysis

{¶34} Once the juvenile court ascertains that one of the four factors listed in R.C.

2151.414(B)(1) is present, then the court proceeds to an analysis of the child’s best

interest.

{¶35} We review a trial court’s determination of a child’s best interest under R.C.

2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No. 95188,

2010-Ohio-5618, ¶ 47. An abuse of discretion implies that the court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983). While a trial court’s discretion in a custody proceeding is

broad, it is not absolute. “A trial court’s failure to base its decision on a consideration of

the best interests of the child constitutes an abuse of discretion.” In re N.B., 8th Dist.

Cuyahoga No. 101390, 2015-Ohio-314, at ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No.

85845, 2005-Ohio-5446, ¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574

N.E.2d 1055 (1991).
 {¶36} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D)(1) mandates that the juvenile court must consider all relevant factors,

including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;

(c) The custodial history of the child, including whether the child has been in
the temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period * * *;

(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent custody
to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
{¶37} “A child’s best interests are served by the child being placed in a permanent

situation that fosters growth, stability, and security.” In re M.S., 8th Dist. Cuyahoga Nos.

101693 and 101694, 2015-Ohio-1028, ¶ 11, citing In re Adoption of Ridenour, at 324.

“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).
 {¶38} After careful consideration of the testimony presented at the permanent

custody hearing and the R.C. 2151.414(D)(1) factors relied upon by the trial court, this

court is obligated to reach the necessary, albeit difficult, conclusion that deficiencies in

this record have precluded this court from conducting a meaningful review of the trial

court’s best interests determination. In this case, the trial court’s best interests

determination relied extensively on L.W. and S.W.’s bond with their two older brothers

and the Alabama OTI report that did not approve S.H.’s home for placement.

Significantly, while Wright testified to the conclusions reached by the Alabama agency,

the OTI report was not made part of the record, and the testimony going to the report’s

findings were vague in most instances and incomplete in others. In our view, the failure

to include the report is significant given its relevance to the court’s evaluation of R.C.

2151.414(D)(1)(d) and S.H.’s testimony establishing that she is both willing and able to

provide L.W. and S.W. with a safe and loving home.

{¶39} We recognize 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.” M.S.,

8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, at ¶ 11. However, under

the specific circumstances presented in this case, we find the limitations of this record

cannot be ignored. Critically, this court is unable to review an important piece of

evidence supporting the trial court’s consideration of whether legally secure placement

could be achieved without a grant of permanent custody to the agency. Given the

magnitude of a decision terminating parental rights, we are unwilling to attempt a review
of the trial court’s judgment without a complete and thorough understanding of all of the

evidence relied on by the court.

{¶40} Based on the foregoing, we vacate the trial court’s judgment awarding

permanent custody of each child to CCDCFS and terminating Father’s parental rights, and

remand for a new permanent custody hearing. Because the GAL report states that “there

are no relatives that I am aware of that are willing and able to take custody of any of the

children,” it is our hope on remand that the GAL amends her report following an adequate

investigation pursuant to R.C. 2151.281 and Sup.R. 48 to reflect all “relevant information”

relating to S.H.

{¶41} Father’s eighth assignment of error is sustained. Father’s remaining

assignments of error are rendered moot by our resolution of his eighth assignment of error.

{¶42} Judgment reversed and remanded.

It is ordered that appellant recover from appellee the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court, Juvenile Division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR