In re S.L.C.

[Cite as In re S.L.C., 2021-Ohio-3932.]
COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

IN RE S.L.C., ET AL. :

Minor Children : No. 110491

:

[Appeal by Mother, B.M.] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 4, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-18-907297 and AD-18-907298

Appearances:

Erin R. Flanagan, Esq., Ltd., and Erin R. Flanagan, for
appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph Young, Assistant Prosecuting
Attorney, for appellee.

ANITA LASTER MAYS, J.:

Appellant B.M. (“Mother”) appeals the juvenile court’s termination of

her parental rights to her minor children R.M. and S.L.C. (“the children”) and the
permanent award of custody to the Cuyahoga County Department of Children and

Family Services (“CCDCFS”). We affirm the judgment of the trial court.

In June 2018, during a predispositional temporary custody hearing

the children alleged to be abused and neglected and were removed from the care of

Mother and Father.1 On August 28, 2018, at the adjudicatory hearing, Mother

stipulated to an amended complaint that alleged the children were neglected. The

trial court subsequently adjudicated the children neglected. A case plan was

developed to address Mother’s substance abuse and mental health issues. On

April 24, 2019, CCDCFS filed a motion to modify temporary custody to permanent

custody for the children. Mother requested six continuances of trial dates from

October 2019, and March 2021, to permit her to continue working on her case plan.

On March 26, 2021, at the beginning of trial Mother requested a final continuance

to be placed in sober housing that would also house the children. The trial court

denied the motion. Trial was held and the trial court terminated Mother’s parental

rights and ordered the children placed in the permanent custody of CCDCFS.

I. Facts and Procedural History

A. Social Worker Testimony

During the March 26, 2021 trial, the state presented two witnesses.

Aimee Shipman (“Shipman”), the social worker assigned to Mother’s case, testified

first. Shipman stated that she was assigned to the case in March 2019, and the

1 Father died of an overdose in August 2019, and therefore, is not a subject in this
appeal.
children were taken into CCDCFS custody in June 2018, because of Mother’s

substance abuse issues. (Tr. 23.) Shipman testified that it was the goal of CCDCFS

to reunify the children with their mother and a case plan was developed for Mother

with that goal in mind. Id. Shipman stated that the case plan services included

mental health and substance abuse services for Mother. (Tr. 24.) Shipman also

testified that a case plan was also established for Father. Id. However, Father passed

away in September 2019 due to a drug overdose. (Tr. 25.) As a result, Father is no

longer a part of this case.

Shipman stated that, before March 2019, Mother was referred to

Catholic Charities’ substance abuse program. Mother did not participate in the

program nor did she complete treatment for substance abuse. (Tr. 26.) Mother was

also referred to Signature Health for mental health services, and did not attend its

services either. Additionally, after a hair screen Mother tested positive for fentanyl.

(Tr. 29.) As a result, CCDCFS filed a motion to modify temporary custody to

permanent custody of the children. The trial date was set for October 2019.

The trial date was continued because during the summer of 2019,

Mother had surgery and before trial Mother enrolled in Windsor-Laurelwood to

start substance abuse treatment, and Father passed away. However, Mother did not

complete the program, she tested positive for drugs, and spent a month in jail.

(Tr. 28.) After Mother was released from jail, she was placed in Stella Maris, a

chemical dependency treatment facility. Mother was discharged around the
beginning of March 2020, although in January 2020, Mother tested positive for

cocaine and fentanyl. Id.

After Mother was discharged from Stella Maris, she moved into

Walton House, a sober living House in April 2020. (Tr. 30.) Shipman testified that

Mother left Walton House after a week or two, but agreed to continue to do its

aftercare program. Mother completed the program in May 2020. CCDCFS tested

Mother for drugs in September 2020, and Mother told Shipman that “she was just

buying bags of white powder and using them.” (Tr. 33.) Mother tested positive for

fentanyl.

As a result of the positive test, Mother was sent back to Stella Maris

Detox Program and then back to Walton House. (Tr. 34.) It was recommended to

Mother that she enroll in a more intense program, but Mother declined. Mother

successfully completed the program, and moved to Sharon’s House sober living. At

the time of trial, Mother was still living at Sharon’s House. (Tr. 36.) Shipman

discussed with Mother about moving into Mommy and Me, a sober living house

where the children can live with Mother. Id. Mother then stated that she was not

ready to move from Sharon’s House to Mommy and Me because she was very

comfortable at Sharon’s House.

Shipman testified that Mother’s case has been pending for three years

while Mother abides by her case plan. (Tr. 38.) Shipman also testified that “mom

is able to maintain her sobriety when she’s in a controlled environment.” (Tr. 40.)
However, “the agency’s concern is when she leaves that controlled environment is

she going to be able to maintain that.” Id.

Shipman also stated that the children have been in care for most of

their lives and there are not suitable family members to care for them. The children

have bonded with their foster parents and are very happy in their home. (Tr. 45.)

Shipman stated that Mom had two-hour visits every week with the children and

would consistently show up to the visits 20 minutes or more late. Id. The agency

has a policy that if you are more than 15 minutes late for a visit, they would cancel

it. However, they would give Mother more time because the children traveled more

than 2 hours each for the visits. Id.

Shipman testified that Mother was good with her children, she played

with them, fed them and responded to their cues. (Tr. 46-47.) Shipman also

testified that Mother “knows that the children are in a very good home and if the

children cannot come home to her, she would like where the children are currently

placed to be the ones to adopt the children.” (Tr. 49.)

B. Guardian Ad Litem’s Testimony

Tyrone Fazio (“Fazio”), the guardian ad litem submitted his report

and put his report and recommendation on the record. Fazio stated that Mother

“has been given numerous opportunities to try to address her substance abuse issues

and to be able to provide for these children.” (Tr. 69.) Fazio also stated that the

children are in a caring home. However, Fazio opposed the motion for permanent

custody. Fazio stated that his recommendation was “based on the fact that the
mother had been consistent in her program from approximately September,

October of last year to the present.” (Tr. 70.) However, Fazio acknowledged that

“there is a statutory issue * * * in regard to the time elements on cases.” Id. Fazio

also expressed that he “would oppose the motion for permanent custody today as

not being in the children’s best interest, but that once again is contingent upon the

follow through by the mother in this program.” (Tr. 72.) Fazio also suggested that

the court “extend this case in some manner to give” mother that opportunity. Id.

C. Trial Court’s Decision

At the end of the trial, the trial court stated that “I’ll get the decision

out to you.” (Tr. 98.) The trial court later awarded permanent custody of the

children to CCDCFS, and stated in its journal entry,

Upon due consideration of the evidence and testimony presented, and
notwithstanding the report from the Guardian ad Litem, the Court
finds by clear and convincing evidence that the child[ren] cannot be
placed with the mother or father within a reasonable time or should
not be placed with the mother or father for the following reasons: The
child has been in temporary custody of the Cuyahoga County Division
of Children and Family Services which is for twelve (12) or more
months of a consecutive twenty-two (22) month period. The
child[ren] has been in temporary custody since September 21, 2018.

Journal entry Nos. 0914624631 and 0914624634 (Apr. 9, 2021).

Mother has filed this timely appeal assigning one error for our review:

Termination of Appellant’s parental rights and award of permanent
custody to the agency is against the manifest weight of the evidence
and constitutes a denial of due process of law.
II. Standard of Review

“[T]o terminate parental rights and grant permanent custody to a

county agency, the record must demonstrate by clear and convincing evidence the

following: (1) the existence of one of the conditions set forth in

R.C. 2151.414(B)(1)(a) through (d); and (2) permanent custody is in the best interest

of the child.” In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-

Ohio-4064, ¶ 27. “Clear and convincing evidence” is that quantum of evidence that

instills in the trier of fact a firm belief or conviction as to the allegations sought to be

established. In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

When determining the child’s best interest pursuant to

R.C. 2151.414(D)(1), courts analyze the following factors: (a) the interaction and

interrelationship of the child with others; (b) the wishes of the child; (c) the custodial

history of the child; (d) the child’s need for a legally secure placement and whether

such a placement can be achieved without permanent custody; and (e) whether any

of the factors in divisions R.C. 2151.414(E)(7) to (11) apply.

Also,

[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 “best interest determination” focuses on the child, not the parent.

R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th

Dist.1994). The discretion that the juvenile court enjoys in deciding whether an

order of permanent custody is in the best interest of a child should be accorded the

utmost respect, given the nature of the proceeding and the impact the court’s

decision will have on the lives of the parties concerned. Id. at 316.

Thus, 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 V.C., 8th Dist. Cuyahoga

Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52, citing In re L.O., 8th Dist.

Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22. “An abuse of discretion implies that

the court’s decision was unreasonable, arbitrary or unconscionable.” Id., citing

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

R.C. 2151.353(A)(4) authorizes a trial court to grant permanent

custody to an agency where a child has been adjudicated neglected, dependent, or

abused. The trial court must determine by clear and convincing evidence that:

(1) “the child cannot be placed with one of the child’s parents within a reasonable

time or should not be placed with either parent” pursuant to R.C. 2151.414(E); and

(2) “permanent commitment is in the best interest of the child” pursuant to

R.C. 2151.414(D)(1). R.C. 2151.353(A)(4).
III. Law and Analysis

The trial court has authority to grant permanent custody to CCDCFS

where, as in this case, a child has been adjudicated as neglected, dependent, or

abused.

When an agency files a permanent custody motion under
R.C. 2151.413 after obtaining temporary custody, the guidelines and
procedure set forth under R.C. 2151.414 apply. Division (B) of
R.C. 2151.414 sets forth a two-prong analysis to be applied by a
juvenile court. Pursuant to this division, before a trial court can
terminate parental rights and grant permanent custody to a county
agency, the court must find by clear and convincing evidence (1) the
existence of any one of the conditions set forth in
R.C. 2151.414(B)(1)(a) through (e), and (2) that granting permanent
custody to the agency is in the best interest of the child.

In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 45 (8th Dist.).

“Only one of the four factors must be present for the first prong of the

permanent custody analysis to be satisfied. 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.” In re J.B., 8th Dist. Cuyahoga

No. 98565, 2013-Ohio-1705, ¶ 80-81. Regarding the first prong of the analysis, the

record reveals that the children were initially placed in CCDCFS’s care on June 8,

2018 and temporary custody was granted in September 2018. The trial court stated

in its journal entries,

The child[ren] has been in temporary custody of the Cuyahoga County
Division of Children and Family Services which is for twelve (12) or
more months of a consecutive twenty-two (22) month period. The
child[ren] has been in temporary custody since September 21, 2018.
Journal entry Nos. 0914624631 and 0914624634 (Apr. 9, 2021).

In its journal entries, the trial court also listed a number of reasons

why permanent custody should be awarded to CCDCFS, in accordance with

R.C. 2151.414(E)(1) and (4). The court stated:

Following the placement of the child[ren] outside of 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, mother has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home.

Journal entry Nos. 0914624631 and 0914624634 (Apr. 9, 2021).

We recognize that “a parent’s right to raise a child is an essential and

basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). And the

permanent termination of parental rights has been described as “the family law

equivalent of the death penalty in a criminal case.” In re Hoffman, 97 Ohio St.3d

92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. Also, “‘termination of the rights of a

birth parent is an alternative of last resort.’” In re Gill, 8th Dist. Cuyahoga

No. 79640, 2002-Ohio-3242, ¶ 21, quoting In re Wise, 96 Ohio App.3d 619, 624, 645

N.E.2d 812 (9th Dist.1994), citing In re Cunningham, 59 Ohio St.2d 100, 105, 391

N.E.2d 1034 (1979).

We do not agree with Mother that the trial court’s determination to

award permanent custody to CCDCFS is premature. However, we also recognize

that a trial 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 A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

According to Shipman, Mother was referred to a substance abuse

program and a mental health service that she did not attend. Shortly thereafter,

Mother tested positive for fentanyl. Months later, Mother was again referred to

another substance abuse treatment, where she did not complete the program, tested

positive for drugs, and spent a month in jail. After she was released from jail, Mother

was placed in a chemical dependency treatment facility, and before she was

discharged, she tested positive for cocaine and fentanyl.

The trial court stated in its journal entries that Mother’s dependency

on drugs is so severe that it makes her unable to provide an adequate and permanent

home for the children at the present time and within one year after the trial.

R.C. 2151.414(E)(2). Testimony revealed that although Mother attended visitations

with the children, she was consistently 20 minutes or more late. Because the

children traveled two hours for visitation the agency did not follow the 15-minute

late visitation cancellation policy and waited for Mother. The trial court determined

that Mother has demonstrated a “lack of commitment towards the children by

failing to regularly support, visit, or communicate” with them when she is able to do

so. R.C. 2151.414(E)(4). The trial court also stated that Mother is “unwilling to

provide food, clothing, shelter, and other basic necessities for the children,” which
is “evidenced by her unwillingness to successfully complete a case plan.”

R.C. 2151.414(E)(14). Journal entry Nos. 0914624631 and 0914624634 (Apr. 9,

2021).

Additionally, the trial court listed other factors, stating:

Testimony revealed that mother has not tested positive for an illegal
substance since September 2020. However, the children have been in
the temporary custody since September 2019. Since coming into
temporary custody, mother has been in and out of treatment and
appears to only remain drug free when in a controlled environment
such as “Sharon’s House.” “This does not convince this Court that
mother has the ability to remain drug free.”

Journal entry Nos. 0914624631 and 0914624634 (Apr. 9, 2021).

The record reveals that the trial court accurately captured Shipman’s

testimony regarding Mother’s numerous failed attempts to complete substance

abuse treatment, Mother’s subsequent sobriety while in sober housing, and the

length the children have been in agency custody. The record supports that the first

prong of the two-part test was satisfied where the trial court found by clear and

convincing evidence that in accordance with R.C. 2151.414(B)(1)(d), the children

have “been in the temporary custody of the Cuyahoga County Division of Children

and Family Services which is for twelve (12) or more months of consecutive twenty-

two (22) month period.” Journal entry Nos. 0914624631 and 0914624634 (Apr. 9,

2021).
 As the factfinder in this case, the trial court was in the best position to

determine the credibility of the witnesses and observe their demeanor. As we

recently stated:

“Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed
as being against the weight of the evidence by a reviewing court.”

The reason for this standard of review is that the trial judge has the
best opportunity to view the demeanor, attitude, and credibility of
each witness, something that does not translate well on the written
page. * * *

“The underlying rationale of giving deference to the findings of the
trial court rests with the knowledge that the trial judge is best able to
view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of
the proffered testimony.[”]

“A reviewing court should not reverse a decision simply because it
holds a different opinion concerning the credibility of the witnesses
and evidence submitted before the trial court. A finding of an error in
law is a legitimate ground for reversal, but a difference of opinion on
credibility of witnesses and evidence is not. The determination of
credibility of testimony and evidence must not be encroached upon by
a reviewing tribunal, especially to the extent where the appellate court
relies on unchallenged, excluded evidence in order to justify its
reversal.”

This is even more crucial in a child custody case, where there may be
much evident in the parties’ demeanor and attitude that does not
translate to the record well. (Citations omitted.)

In re I.S., 8th Dist. Cuyahoga No. 107472, 2019-Ohio-638, ¶ 68, quoting Davis v.

Flickinger, 77 Ohio St.3d 415, 1997- Ohio 260, 674 N.E.2d 1159 (1997).

As to the second prong of the analysis, once the juvenile court

determines that one of the factors listed in R.C. 2151.414(B)(1) applies, then the
court must determine, by clear and convincing evidence, whether permanent

custody is in the best interest of the children. In re E.C., 8th Dist. Cuyahoga

No. 103968, 2016-Ohio-4870, ¶ 29. When determining the child’s best interest

pursuant to R.C. 2151.414(D)(1), courts analyze the following factors: (1) the

interaction and interrelationship of the child with others, (2) the wishes of the child,

(3) the custodial history of the child, (4) the child’s need for a legally secure

placement and whether such a placement can be achieved without permanent

custody, and (5) whether any of the factors in divisions R.C. 2151.414(E)(7) to (11)

apply.

Shipman testified that the children have bonded with their foster

parents and are very happy in their home, and that they have been in care for most

of their lives. She also testified that Mother knows the children are in a good home

and that if Mother cannot get custody of the children, she would want their current

foster family to adopt them.

The trial court stated, in the journal entries:

Upon considering the interaction and interrelationship of the
child[ren] with the child[ren’s] parents, siblings, relatives, and foster
parents; the wishes of the child[ren]; the custodial history of the
child[ren], including whether the child[ren] has been in temporary
custody of a public children services agency or private child placing
agency under one (1) or more separate orders of disposition for twelve
(12) or more months of a consecutive twenty-two (22) month period’
the child[ren]’s need for legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody; and notwithstanding 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[ren] and the
 child[ren] cannot be placed with mother within a reasonable time or
should not be placed with mother.

Journal entry Nos. 0914624631 and 0914624634 (Apr. 9, 2021).

The trial court further found that reasonable efforts were made to

prevent the removal of the children from Mother, and that “relevant services” were

provided to Mother. However, Mother was not successful in completing or

benefitting from the services and has continued to relapse throughout the duration

of this case.

Thus, after a thorough review of the record, we find that there is clear

and convincing evidence supporting the determination to award permanent custody

to CCDCFS, and that the trial court did not abuse its discretion by finding that the

award is in the best interest of the children.

Mother's sole assignment of error is overruled.

The trial court’s judgment is 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 issue out of this court directing the

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.

______________________________
ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR