[Cite as In re J.L., 2020-Ohio-5254.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
:
IN RE J.L. :
: No. 109626
A MINOR CHILD :
:
[Appeal by J.A., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: November 12, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 18905081
_________
Appearances:
Scalise Legal Services, L.L.C., and Stephanie B. Scalise, for
appellant.
EILEEN A. GALLAGHER, J.:
Appellant-mother J.A. (“Mother”) appeals the decision of the
Juvenile Division of the Cuyahoga County Court of Common Pleas (the “juvenile
court”) terminating her parental rights and granting permanent custody of her son
J.L. (d.o.b. December 5, 2006) to appellee, the Cuyahoga County Division of
Children and Family Services (“CCDCFS” or the “agency”).
Mother’s appointed counsel has filed a motion to withdraw pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which
she asserts that (1) despite multiple attempts, she has been unable to locate and
communicate with Mother regarding her goals and wishes in this case and (2) she
cannot find any meritorious issue for appellate review. This court held the motion
in abeyance and afforded Mother an opportunity to file a pro se brief. Mother has
failed to avail herself of that opportunity. Following our own independent review,
this court grants appointed counsel’s motion to withdraw, and we dismiss the
appeal.
Factual Background and Procedural History
On April 18, 2018, CCDCFS filed a complaint for neglect and
protective supervision. The complaint alleged that Mother and J.L.’s alleged father,
J.L., Sr. (“Father”), had failed to meet J.L.’s basic needs on a consistent basis,
including providing adequate food, clothing and shoes for J.L. and ensuring that J.L.
attended school on a regular basis. The complaint further alleged that Mother and
Father had failed to address J.L.’s special needs, including refusing to attend
meetings at school to discuss his Individualized Education Plan (“IEP”), and that
J.L. had appeared at school with soiled clothing and poor hygiene. The complaint
also alleged that Mother had an unresolved criminal matter for drug possession and
possession of criminal tools and that Father had failed to establish paternity and had
failed to support, visit or communicate with J.L. since birth. The agency requested
a disposition of legal custody to Mother with protective supervision to CCDCFS.
On June 1, 2018, CCDCFS filed an amended complaint, amending the
dispositional prayer of the complaint from protective supervision to temporary
custody to CCDCFS. The agency also filed a motion for predispositional temporary
custody. In support of the motion, the agency attached an affidavit from CCDCFS
social worker Megan Sunyak in which she averred that Mother had failed to care for
J.L., that, on a regular basis, Mother’s whereabouts were unknown and that Mother
had left J.L. with Father, who was “overwhelmed” and unable to care for J.L. Sunyak
further averred that there were no known relatives who were able to care for J.L.
The juvenile court granted emergency temporary custody of J.L. to the agency. On
June 28, 2018, J.L. was removed from Mother’s custody. Shortly thereafter, J.L.
was placed with a foster family.
J.L. has a brother, P.L., who was also removed from his Mother’s
custody in or around this time. P.L. was placed with maternal cousins.
On August 31, 2018, the guardian ad litem filed an initial report and
recommendation. She reported that J.L. and P.L. had been removed from their
parents’ care due to Mother’s legal issues and Mother and Father’s substance abuse,
housing issues and “general neglect of the children.” The guardian ad litem
indicated that it had been reported that J.L. and P.L. were sent to school unbathed
in dirty clothing, that no arrangements had been made for them to eat throughout
the day and that the parents did not bring the children to necessary medical
appointments. The guardian ad litem reported that J.L. has “severe special needs”
and that although he is “mostly nonverbal,” he seems to understand “almost
everything” that is said to him. She indicated that the parents had “a huge task in
front of them” if they wanted their children returned to their care and custody,
including finding employment and independent housing, addressing their
substance abuse issues and learning how to parent their children and accommodate
J.L.’s special needs. The guardian ad litem recommended that temporary custody
be granted to the agency.
On November 28, 2018, the magistrate conducted an adjudicatory
hearing. On December 21, 2018, J.L. was adjudicated to be neglected. On
February 5, 2019, emergency custody was terminated, and J.L. was committed to
the temporary custody of CCDCFS.
CCDCFS filed a case plan that required Mother to complete a
substance abuse assessment and comply with any recommendations, to submit to
drug screens, to obtain stable housing and to demonstrate the ability to meet J.L.’s
basic and special needs, including his educational and medical needs. The
permanency goal was reunification with Mother. The juvenile court approved the
case plan.
On May 1, 2019, CCDCFS filed a motion to modify temporary custody
to permanent custody. In an affidavit submitted in support of the motion, CCDCFS
social worker Ariana Bey averred that Mother had failed to address her substance
abuse issues and that Mother and Father did not have stable housing, had failed to
follow up with medical providers and services for J.L. and had failed to demonstrate
that they could provide for J.L.’s special needs. She also averred that Father had
failed to make himself available for case plan services and had abandoned J.L.
On May 23, 2019, the guardian ad litem filed an updated report and
recommendation. The guardian ad litem reported that since his removal from
Mother’s custody, J.L. had been living in a specialized foster home, was regularly
seeing medical specialists for the first time and was doing “very well” both at home
and at school. The guardian ad litem further reported that neither Mother nor
Father had made “any effort to work on case plan services,” that both parents had
“disappeared” during the pendency of the case — “eventually turning up in county
jail” — and that neither parent “appear[ed] interested or capable of caring for their
children.” Based on the progress J.L. had made while in custody and the fact that
his parents had “shown no interest” in him, the guardian ad litem recommended
that permanent custody of J.L. be granted to CCDCFS.
Hearing on Motion for Permanent Custody
On January 28, 2020, the juvenile court held a hearing on the
agency’s motion for permanent custody. At that time, J.L. was 13 and had been
living with a foster family for more than 18 months. Mother was transported from
the Medina County Jail to attend the hearing. Father did not attend the hearing.
At the outset of the hearing, counsel for Mother and Father made oral
motions for the extension of temporary custody.
Two witnesses testified on behalf of CCDCFS at the permanent
custody hearing — M.W., J.L.’s foster mother (“Foster Mother”), and CCDCFS social
worker Ariana Bey.
Foster Mother testified that J.L. was placed with her family on July 5,
2018 and had been living with the family continuously since that time. She indicated
that she and her husband are licensed therapeutic foster parents and that they
specialize in special needs children, including deaf children, autistic children and
children with mobility issues, and sibling groups. Foster Mother described J.L. as a
“nonverbal child who also presented with autistic-like behaviors.” She indicated
that when J.L. was first placed with them, she had been told that he had been
diagnosed with a craniofacial deformity, craniosynostosis. Foster Mother stated
that after J.L. was placed with them, he began regularly seeing a neurodevelopment
pediatrician and neurologist, who identified other medical conditions, and a
physiatrist, who deals with walking and gait training.
Foster Mother indicated that J.L. has only a few words that he uses
and that he has trouble putting words together but that his receptive language is
“very good” and that he can express his needs and wants by gesturing or nodding or
shaking his head. Foster Mother indicated that they are working on sign language
with him but that J.L.’s progress is complicated by his vision issues.
Foster Mother testified that J.L. has been diagnosed with cortical
vision impairment or cerebral vision impairment (which means his brain does not
interpret what he’s seeing) and strabismus (a turning of the eye). She indicated that
J.L. sees an eye specialist and has had eye surgery. She indicated that J.L. has also
been diagnosed with a seizure disorder and now takes daily seizure medication,
which has made him “a new kid,” “way more alert” and “engaged with the people
around him,” but that emergency medicine must be kept on hand at all times.
Foster Mother indicated that when J.L. initially came to live with
them, J.L. also saw a cardiologist for a heart deformity he had had since birth and a
gastroenterologist for gastric problems he was then experiencing. She stated,
however, that those issues had resolved.
Foster Mother indicated that J.L. is in an inclusion classroom in
Hudson City Schools where the children all have similar developmental issues. She
stated that J.L. has an IEP with speech and language goals and occupational and
physical therapy goals and that he also works with a teacher for the visually
impaired. Foster Mother stated that another foster sibling is in the same classroom
and that J.L. loves school.
Foster Mother testified that she currently has five other minor
children at home — four adopted children with special needs and one other foster
child with special needs — all of whom are 12 or 13 years old. She stated that two of
her adult children also currently live with her — an adult daughter, who is a
registered nurse, and an adult son, who is a high school science teacher. Foster
Mother indicated J.L. loves his foster family, that he is a “blessing” to the family and
that he regularly interacts with and goes to church and on other outings with his
foster family.
Foster Mother testified that routines are a critical aspect of J.L.’s life
and care. She indicated that J.L. requires regular medication and that J.L. is not
potty-trained, will likely never be potty-trained and is, therefore, on a bowel
regimen. She stated that J.L. can partially feed himself but, at times, requires
assistance with eating and also requires assistance getting dressed. She indicated
that J.L. wears braces on his legs and, in unfamiliar settings, does best when in a
therapeutic stroller.
Foster Mother testified that neither Mother nor Father had ever
visited J.L. during the time he had been placed with their family but that J.L. has
had regular visits with his brother and extended family and is “excited” for those
visits. Foster Mother stated that she believed it was important for J.L. to maintain
relationships with his brother and extended family and that if permanent custody of
J.L. was granted to CCDCFS, she would ensure that J.L.’s connection to his brother
and extended family was maintained, as she does for her other adopted children.
Bey testified that she was assigned to the case in April 2018. She
indicated that J.L. came into CCDCFS custody in June 2018 due to “medical and
educational neglect” after it was reported to the agency that J.L. was missing school
and that when he was sent to school, he had unclean clothes, inappropriate
undergarments, was wearing shoes that were too small for him and was not given a
lunch or money to purchase lunch.
Bey testified that Mother’s case plan included completing parenting
classes, complying with mental health services and substance abuse services and all
recommendations made by the service providers, maintaining stable housing,
following up with medical service providers for J.L. and demonstrating an ability to
meet J.L.’s basic and special needs. Bey testified that she believed the “root cause”
of Mother and Father’s inability to care for their children was substance abuse.
Bey testified that the only time she ever observed Mother with J.L.
was prior to his removal from Mother’s care and custody. Bey indicated that she had
provided Mother with a referral for developmental disability services and asked
Mother to follow up with medical providers regarding J.L.’s initial diagnosis of
craniosynostosis, but that Mother never followed through. Bey stated that she had
approximately three home visits with the family prior to the removal of the children
and that, at the time, Mother and the children were staying with a family friend. She
indicated that when she visited the home, P.L. would be gone and that J.L. would
normally be in the front of Mother’s car or in the home “just laying there.” Bey
testified that she saw no signs of physical abuse but that J.L.’s parents “were not * * *
attentive to his needs” and that “[i]t was just kind of like he was just there.” Bey
described one visit where J.L. had on unclean clothes and there were gnats flying
around his face.
Bey testified that she soon lost contact with Mother and Mother’s
whereabouts were unknown. Bey stated that she later learned that Mother was
incarcerated in the Medina County Jail. She indicated that Mother was in and out
of jail from May 2018 until July 2019. Bey testified that whenever she learned
Mother had been released from jail, she would reach out to Mother to see if Mother
wanted to reconnect, initiate visits with her children or engage in services. Bey
testified that when Mother resurfaced in July 2019, she made referrals for Mother
for mental health services, substance abuse services and parenting classes. Bey
stated that Mother completed an intensive inpatient substance abuse program but
refused to comply with the recommended after care because she did not want to stay
in the recovery house. Bey indicated that in December 2019, she asked Mother to
submit to a drug screen but that Mother did not comply. Shortly thereafter, Bey
learned Mother was back in jail.
Bey testified that neither Mother nor Father ever visited with J.L.
after he was in agency custody. Bey stated that in or around April 2019, shortly after
she had visited P.L., Mother requested a visit with J.L., but that Mother was
reincarcerated before the visit could be arranged.
Bey testified that Father never established paternity or engaged in
services and that Father’s current whereabouts were unknown. She indicated that
her last contact with Father was in June 2018 and that subsequent efforts to contact
Father were unsuccessful. Bey stated that the agency had spoken with several
members of J.L.’s extended family to see if they could be a possible placement for
J.L. but that no one could meet his substantial medical needs.
Bey testified that J.L. had “flourished” while in foster care and was
now “thriving.” She indicated that J.L. appeared to have been malnourished
previously and had “really grown” since he was removed from his Mother’s custody.
Bey stated that J.L. had made “significant progress” both at school and at home and
that his medical needs were being met. Bey indicated that J.L. had had eye surgery
and now wears glasses, that he was walking straighter as a result of new orthotics he
had received and that the family “has done a lot of different things to help the child
improve with his quality of life,” including engaging in therapies and doing various
activities with him.
Bey testified that, in her view, it was important to J.L.’s well-being
that he remain in his current placement to ensure the consistency of his medical care
and because of the close, interactive relationship he has with his foster family. Bey
stated that the agency believed it was in J.L.’s best interest to grant permanent
custody to the agency rather than extend temporary custody because (1) J.L. had
already been in agency custody for 18 months, (2) J.L. needs and deserves
permanency, stability and consistency, (3) J.L. was comfortable in his placement,
(4) the foster family was providing for all of his basic, medical and educational needs
“to the highest ability that they can” and (5) Mother had made no effort to maintain
a connection with J.L. or to develop the skills and resources necessary to “effectively
care for” J.L. Bey indicated that, as of the date of the hearing, it was anticipated that
Mother would remain incarcerated for another six months.
Mother did not testify and did not present any witnesses at the
hearing.
The juvenile court also heard from J.L.’s court-appointed special
advocate and J.L.’s guardian ad litem. Based on the significant progress J.L. had
made while in foster care, the level of care he was receiving in his current placement
and the parents’ lack of involvement, both J.L.’s court-appointed special advocate
and J.L.’s guardian ad litem recommended granting permanent custody of J.L. to
CCDCFS in the hope that he would be able to remain with his current foster family.
The Juvenile Court’s Decision to Grant Permanent Custody to
CCDCFS
On February 20, 2020, the juvenile court granted CCDCFS’ motion to
modify temporary custody to permanent custody, terminating the parental rights of
Mother and Father and awarding permanent custody of J.L. to CCDCFS. Based on
the evidence presented at the hearing and the recommendation of the guardian ad
litem, the juvenile court found, by clear and convincing evidence, that the agency
had proven the allegations of its motion, that J.L. had been abandoned and could
not be placed with either parent within a reasonable time or should not be placed
with his parents and that it was in J.L.’s best interest to grant permanent custody to
the agency.
Law and Analysis
Anders Standard
Anders outlines the procedure that counsel must follow to withdraw
due to the lack of any meritorious grounds for appeal. Anders, 386 U.S. at 744, 87
S.Ct. 1396, 18 L.Ed.2d 493. In Anders, the United States Supreme Court held that
if appointed counsel, after a conscientious examination of the case, determines an
appeal to be wholly frivolous, he or she should advise the court of that fact and
request permission to withdraw. Id. This request, however, must be accompanied
by a brief identifying anything in the record that could arguably support the appeal.
Id. Counsel must also provide the client with a copy of the brief and allow the client
sufficient time to file his or her own brief. Id.
Once the appellant’s counsel satisfies these requirements, this court
must fully examine the proceedings below to determine if any arguably meritorious
issues exist. Id. If the court determines that the appeal is wholly frivolous, the court
may grant counsel’s request to withdraw and dismiss the appeal. Id.; see also State
v. Sims, 8th Dist. Cuyahoga No. 107724, 2019-Ohio-4975, ¶ 7-9.
Although Anders arose in a criminal context, this court has applied
Anders in appeals involving the termination of parental rights. See, e.g., In re A.M.,
8th Dist. Cuyahoga No. 106789, 2018-Ohio-3186; In re C.S., 8th Dist. Cuyahoga No.
105700, 2017-Ohio-8664.
Previously, former Loc.App.R. 16(C) set forth the specific procedure
governing Anders briefs and motions to withdraw followed by this court. That rule
was amended on February 1, 2019 and no longer includes any procedure for the
filing of Anders briefs. However, as this court has previously stated, “the absence of
a local rule governing Anders briefs does not prevent this court from accepting these
briefs nor from following the procedure the United States Supreme Court outlined
in Anders.” Sims at ¶ 7-14 (discussing “the duties of appellate counsel when filing
an Anders brief and our duties when ruling on counsel’s motion to withdraw on the
grounds that the appeal would be frivolous” even in the absence of former
Loc.App.R. 16(C), different Ohio appellate courts’ views on Anders briefs and this
court’s decision that “until the Ohio Supreme Court resolves the split among the
Ohio Appellate Districts regarding the application of Anders * * * we will continue
to adhere to the procedures outlined in Anders pertaining to both counsel and the
court when appointed appellate counsel files a motion to withdraw because an
appeal would be wholly frivolous”); see also State v. Lariche, 8th Dist. Cuyahoga No.
108512, 2020-Ohio-804, ¶ 7.
Independent Review
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).
However, this right is not absolute. 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, “sanctioned 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., 2013-Ohio-1704, 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).
Standard for Terminating Parental Rights and Granting
Permanent Custody to CCDCFS
Before a juvenile court can terminate parental rights and grant
permanent custody of a child to CCDCFS, it must satisfy the two-prong test set forth
in R.C. 2151.414. First, the juvenile court must find by clear and convincing evidence
that one of the following conditions set forth in R.C. 2151.414(B)(1)(a) through (e)
exists:
(a) 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.
(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 twelve
or more months of a consecutive twenty-two-month period, or 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 and, 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.
(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.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28
of the Revised Code or the date that is sixty days after the removal of
the child from home.
Second, the juvenile court must find by clear and convincing evidence
that granting permanent custody to the agency is in the best interest of the child.
R.C. 2151.414(B)(1). “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. 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.
The Juvenile Court’s Decision to Grant Permanent Custody
of J.L. to CCDCFS
With respect to the first prong, the agency moved for permanent
custody pursuant to R.C. 2151.414(B)(1)(a). The record reflects that J.L. was
removed from his Mother’s home on June 28, 2018. R.C. 2151.414(E) states that
“[i]n determining * * * whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court shall
consider all relevant evidence.” If the court determines, by clear and convincing
evidence, that one or more specified circumstances exist as to each of the child’s
parents, “the 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.” R.C.
2151.414(E).
Here, the juvenile court found, by clear and convincing evidence, that
R.C. 2151.414(E)(1), (4) and (10) applied, supporting its determination that J.L.
could not be placed with either parent within a reasonable time or should not be
placed with his parents:
One or more of the factors in division (E) of section 2151.414 of the
Revised Code exist and the child cannot be placed with one of the
child’s parents within a reasonable period of time or should not be
placed with either parent[.]
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 removed from the parents, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the home.
The parent has 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 showing an unwillingness to
provide an adequate permanent home for the child.
***
The parent has abandoned the child.
With respect to the second prong, R.C. 2151.414(D)(1) states that in
determining whether permanent custody is in a child’s best interest, the court “shall
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 * * *;
(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 [R.C. 2151.414(E)(7) to (11)] apply in
relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28
of the Revised Code or the date that is sixty days after the removal of
the child from home.
The best interest determination focuses on the child, not the parent.
In re N.B., 2015-Ohio-314, at ¶ 59. Although the juvenile court is required to
consider each statutory factor in determining what is in a child’s best interest under
R.C. 2151.414(D)(1), 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
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. A juvenile
court has considerable discretion in weighing the factors set forth in R.C.
2151.414(D)(1). Only one of the factors needs to be resolved in favor of permanent
custody to terminate parental rights. In re A.B., 8th Dist. Cuyahoga No. 99836,
2013-Ohio-3818, ¶ 17; In re N.B. at ¶ 53. We review a juvenile court’s determination
of a child’s best interest under R.C. 2151.414(D)(1) for abuse of discretion. See, e.g.,
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.
The record reflects that the juvenile court considered each of the
relevant R.C. 2151.414(D)(1) factors in determining that an award of permanent
custody was in J.L.’s best interest. The juvenile court explained its reasoning as
follows:
The Court finds that the child’s continued residence in or return to the
home of [J.A.] and [J.L., Sr.] will be contrary to the child’s best interest.
The Court further finds that reasonable efforts were made to prevent
the removal of the child from his home, or to return the child to the
home, and to finalize the permanency plan, to wit: reunification.
Relevant services provided to the family were attempts to have mother
successfully complete a substance abuse program[,] mental health
counseling, provide a stable home, meet J.L.’s (DOB 12/5/06) basic
needs and address J.L.’s (DOB 12/5/06) extensive medical and mental
health issues. The latter was not successful because mother failed to
complete all of the recommendations from her substance abuse
assessment. Mother did complete intensive outpatient treatment, but
failed to benefit from said treatment when she declined to follow [the]
recommended after care program. Additionally, mother failed to
benefit from treatment when she failed to submit [to a] random
urinalysis request after being released from prison. Mother also does
not have a stable home that she either leases or owns. Mother also does
not have a job or any verifiable income to demonstrate that she can
provide for J.L.’s ([DOB]12/05/06) basic needs let alone her own.
***
The parent is repeatedly incarcerated, and the repeated incarceration
prevents the parent from providing care for the child. The parent is
unwilling to provide food, clothing, shelter, and other basic necessities
for the child or to prevent the child from suffering physical, emotional,
or sexual abuse or physical, emotional, or mental neglect.
Other relevant factors: The child has special needs that Mother has
failed to demonstrate she could manage and accordingly provide J.L.
(DOB 12/5/06) adequate care.
The juvenile court’s findings are supported by competent, credible,
clear and convincing evidence in the record.
J.L. requires a caregiver with specialized skills and training. He has
multiple medical conditions for which consistent medical care from multiple
specialists is required. He is nonverbal, has certain autistic-like behaviors and
requires specialized education. He will likely never be able to use the bathroom on
his own and needs help getting dressed. In addition, he takes medication for
seizures and has serious vision and mobility issues.
The record reflects that during most of the time J.L. has been in
agency custody, Mother was in and out of jail. As of the time of the hearing, Mother
had made little progress on her case plan. Although Mother did complete an
intensive inpatient drug program, she refused to participate in the recommended
after care or to submit to a requested drug screen. During the periods in which
Mother was out of jail, she did not stay in contact with the agency. She made no
effort to obtain stable housing or employment or take other steps to meet J.L.’s basic
needs much less acquire the skills she would need to address his special medical and
educational needs. The record reflects that Mother had not visited or otherwise
communicated with J.L. since he was removed from her custody in June 2018.
Although J.L. was unable to visit Mother while she was in jail, and although Mother
once requested a visit with J.L. after she was released from jail, she was back in jail
before arrangements could be made for a visit.
With respect to Mother’s request that the juvenile court extend
temporary custody rather than grant permanent custody, a temporary custody order
issued pursuant to R.C. 2151.353(A) terminates after one year. R.C. 2151.353(G). At
the end of that year, the juvenile court “may extend the temporary custody order of
the child for a period of up to six months, if it determines at the hearing, by clear
and convincing evidence, that the extension is in the best interest of the child, there
has been significant progress on the case plan of the child, and there is reasonable
cause to believe that the child will be reunified with one of the parents or otherwise
permanently placed within the period of extension.” R.C. 2151.415(D)(1).
As of the time of the hearing, Mother was back in jail. It was
anticipated that she would remain incarcerated for another six months. There is
nothing in the record to support a reasonable belief that J.L. could be reunified with
Mother within any reasonable time or that an extension of temporary custody was
in the best interest of J.L.
Following a thorough, independent examination of the record as
required by Anders, we cannot say, based on the record before us, that the juvenile
court abused its discretion in determining that an award of permanent custody of
J.L. to CCDCFS was in his best interest or otherwise erred in granting permanent
custody of J.L. to CCDCFS.
Accordingly, we agree that there is no merit to an appeal and that this
appeal is wholly frivolous. We grant counsel’s motion to withdraw and dismiss this
appeal.
Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
EILEEN A. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR