Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: J.F., ET AL. MINOR CHILDREN Appeal By Y.M., Mother
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case Nos. AD 14915855, AD 16906702, and AD
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender, Erika B. Cunliffe, Morgan L. Pirc Assistant Public
ATTORNEYS FOR APPELLEE For CCDCFS Michael C. O'Malley
Cuyahoga County Prosecutor, Anthony R. Beery Assistant
Prosecuting Attorney Cheryl Rice Assistant Prosecuting
LISTED For Father Candace L. Brown, Guardian Ad Litem for
Children Richard D. Summers McDonald Hopkins Co., L.P.A.
Guardian Ad Litem for Y.M. Gail A. Nanowsky For P.K. Thomas
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, J.
Appellant-mother appeals from the juvenile court's
decision awarding permanent custody of her three children to
the Cuyahoga County Department of Children and Family
Services ("CCDCFS"). She raises the following
assignment of error for our review:
The trial court's decision to deny legal custody of J.F.,
G.M., and CM. to their maternal grandmother and terminate
appellant's parental rights is not supported by the
record, the applicable legal standard, or the weight of the
After careful review of the record and relevant case law, we
affirm the trial court's judgment.
Procedural and Factual History
On December 26, 2014, CCDCFS filed a complaint for temporary
custody of J.F. (d.o.b. Sept. 22, 2010), alleging that he was
a dependant child. J.F. had been in the legal custody of his
paternal grandmother while his parents were undergoing
inpatient drug treatment. However, J.F. was removed from his
paternal grandmother's care after she overdosed and was
hospitalized. The agency filed a motion for predispositional
temporary custody, and a magistrate committed J.F. to the
emergency custody of CCDCFS that day. On March 26, 2015, J.F.
was adjudicated dependent and was committed to the temporary
custody of CCDCFS on April 3, 2015. On November 20, 2015,
CCDCFS filed a motion to modify temporary custody of J.F. to
permanent custody. In the motion for permanent custody,
CCDCFS social worker, Charlene Hill, averred that Mother,
Father, and paternal grandmother each failed to comply with
certain aspects of their respective case plans that were
filed and approved by the court.
While the motion for permanent custody of J.F. was pending,
CCDCFS filed a complaint for temporary custody of G.M.
(d.o.b. Mar. 27, 2013), alleging him to be neglected. On
March 28, 2016, G.M. was committed to the emergency custody
of CCDCFS. However, on May 13, 2016, the agency withdrew the
complaint for temporary custody in favor of a complaint for
permanent custody pursuant to R.C. 2151.353(A)(4). The
complaint alleged that Mother and Father have substance abuse
problems that prevent them from providing adequate care. The
complaint further alleged that Mother is cognitively delayed
and has a criminal history, including convictions for theft
and drug possession. At the time the complaint for permanent
custody was filed, Mother was incarcerated.
On April 8, 2016, Mother gave birth to CM. On April 25, 2016,
CCDCFS filed a complaint for dependency and permanent custody
of CM. pursuant to R.C. 2151.353(A)(4). The complaint alleged
that Mother used cocaine, marijuana, and opiates during her
pregnancy and tested positive for opiates at the time of
C.M.'s birth. CM. suffered from withdrawal symptoms due
to his exposure to drugs in utero and required further
hospitalization. When CM. was released from the hospital, he
was placed in the emergency custody of CCDCFS.
On April 29, 2016, the children's maternal grandmother
filed a motion to intervene in J.F.'s case, which the
trial court denied. On June 15, 2016, Mother filed motion for
legal custody to maternal grandmother.
Following an adjudicatory hearing held on June 29, 2016, the
juvenile court issued separate journal entries finding G.M.
and CM. to be dependent children.
On January 25, 2017, the juvenile court held a combined
hearing on Mother's motion for legal custody to maternal
grandmother, and CCDCFS's motion for permanent custody of
J.F. and dispositional prayer of permanent custody on the
complaints for G.M. and CM. At the onset of the hearing,
Father and paternal grandmother stipulated to the
agency's motion for permanent custody. During the
hearing, the trial court heard testimony from the
children's foster parents, CCDCFS social worker, Charlene
Hill, maternal grandmother, and the children's guardian
ad litem ("GAL").
J.F.'s foster parent, K.S., testified that J.F. has lived
in her home since January 2015, except for a brief period of
time when he attempted to live with his brothers and their
foster family. When J.F. did not "attach" with his
new foster family and expressed his desire to leave, K.S.
accepted him back into her home. K.S. testified that J.F. has
educational deficits and behavioral issues that have improved
with therapy and a highly structured routine. K.S. testified
that she intended to adopt J.F. if permanent custody was
K.S. testified that she has personally observed J.F.'s
interactions with Mother. She noted that Mother "loves
[J.F.] dearly, " but that the visits "upset [J.F.]
for days." K.S. explained that J.F. gets upset because
"he thinks he is going back to his mom because she
projects it to him, and he becomes nasty, really nasty."
With respect to maternal grandmother, K.S. testified that
maternal grandmother "is very interested in him and
loves him, he loves her." However, K.S. opined that they
do not have a proper bond based on a lack of discipline.
L.N. is the foster parent of G.M. and CM. L.N. was questioned
at length about the children's special needs. L.N.
testified that when G.M. came to live with her, he
"displayed low self-control" and "had methods
for getting his way that were pretty manipulative." L.N.
stated that she has implemented a behavioral plan that has
improved G.M.'s behavior. L.N. testified that G.M. has
severe speech apraxia and is on an individualized education
plan for a severe speech and language disorder. He requires
weekly speech therapy at the Cleveland Hearing and Speech
Center and attends a special needs preschool.
L.N. began fostering CM. directly from the hospital after he
was born. She testified that CM. was hospitalized for nearly
a month after his birth due to his drug exposure while in
utero. L.N. stated that CM. has a heart murmur, acid reflux,
reactive airway disease, and torticollis. In addition, CM.
has delayed motor skills and speech development. Due to these
issues, CM. regularly sees a developmental specialist and a
physical therapist. L.N. estimated that she spends
approximately four to eight hours a week taking the children
to their various appointments. L.N. testified that she hopes
to adopt G.M. and CM. and would have taken all three of the
children if placement had worked with J.F.
L.N. acknowledged that Mother loves her children. However,
L.N. testified that Mother does not always show up for her
visits with the children, and when she does, the boys
"revert back to some bad behaviors." She stated
that after the visits, the children are emotionally upset and
exhausted because they want to know why they cannot go home
with Mother. Regarding maternal grandmother, L.N. testified
that maternal grandmother clearly loves the children and
interacts with them well during visits.
CCDCFS social worker, Charlene Hill, was assigned to the
children's case in January 2015. Hill summarized the
agency's procedural involvement with the children. Hill
testified that J.F. came into the agency's custody after
his legal custodian, paternal grandmother, was hospitalized
following an overdose.
G.M. came into the custody of the agency in March 2016. Hill
explained that G.M. had been under the care of maternal
grandmother, but that CCDCFS later sought custody of G.M.
once the agency learned that maternal grandmother was
permitting G.M. to be in the unsupervised care of Mother and
Father while maternal grandmother was at work.
CM. came into the agency's custody immediately following
his birth. "Mother used cocaine, marijuana, and opiates
during her pregnancy, testing positive in March 2016 and
April 2017." She also tested positive for opiates at the
time of C.M.'s birth, causing him to be "born drug
exposed." Based on the circumstances of C.M.'s birth
and Mother's failure to progress with her case plan, the
agency sought permanent custody of G.M. and CM. without the
chance for reunification.
Hill explained that the agency was seeking permanent custody
of the children because of Mother's history of substance
abuse, mental health issues, poor communication skills,
inadequate parenting skills, and late appearances for family
visitation. The agency developed a case plan for Mother,
which Hill described as "unsuccessful." Hill stated
that Mother failed to follow through with services, was
inconsistent with the services, was inconsistent with
visitation, and failed to cooperate with the agency.
Regarding her substance abuse assessment, Hill testified that
Mother completed a substance abuse assessment through the
common pleas court following her 2014 conviction for drug
possession. However, Mother failed to complete a second
substance abuse assessment after she tested positive for
drugs at the time of C.M.'s birth and violated her
probation. Hill further testified that Mother is currently in
jail on drug-related charges.
In addition, Hill testified that Mother failed to comply with
the mental health and parenting objectives of her case plan.
Hill explained that Mother did not comply at all with her
mental health services and that her in-home parenting service
provider ended its services because "it was unable to
work with [Mother]."
With respect to visitation, Hill testified that Mother's
attendance for her weekly visits with the children was
"inconsistent." As a result, the agency reduced her
scheduled visits from weekly to once a month. Hill testified
that the visits "tend to be very chaotic." The
children are "all over the place" and Mother
frequently creates turmoil by "saying things that should
not be said to the child[ren]." Finally, Hill testified
that Mother does not have housing, is not employed, and is
currently in jail.
Based on Mother's failure to comply with her case plan
objectives, Hill testified that she does not believe Mother
has the ability to meet her children's needs and that
permanent custody is in the children's best interests.
Hill testified that
Due to the non-compliance of services, and the continued
substance abuse, and in the continued concerns with mental
health, I feel it's in the best interests for the
children remain in the foster homes.
I feel that all of [the children's] basic needs and
special needs are being met in the foster homes, that they
are well cared for. They have made tremendous progress in the
time that they've been in those homes. Their speech has
improved, Their behavior has improved. Their mental health is
being addressed, especially with [J.F.], which it is very
difficult for him with mental health, and [K.S.] has gone
above and beyond to make sure, those foster parents have, to
make sure that their special needs are being met and
they're cared for.
Regarding maternal grandmother, Hill testified that the
agency looked into her as an appropriate placement but was
unable to approve her for placement based on her history with
the agency. Hill stated that the agency conducted a home
visit and found the home to be appropriate. However, the
agency determined that maternal grandmother was not
appropriate for placement because she "has an extensive
history with the agency mostly for educational neglect."
Hill opined that it would not be in the children's best
interests to place them in the legal custody of maternal
grandmother "because she has not shown in the past that
she has been able to provide the special needs that they need
to be taken care of with the speech therapy, the medical, the
Help Me Grow, all of those things."
Maternal grandmother testified that she is employed and lives
in a three-bedroom home with her two teenage daughters. She
stated that she has a "fantastic" relationship with
the children and loves each of them. Maternal grandmother
testified that she is willing and able to take care of the
children and was committed to addressing their special needs
by enrolling them into the necessary programs and schools.
Maternal grandmother further testified that she would protect
the children from their parents and would not allow Mother or
Father to be around the children if they were under the
influence of drugs.
On November 23, 2016, maternal grandmother signed a statement
of understanding for legal custody, expressing her intent to
become the legal custodian of the children. Maternal
grandmother maintained that the agency failed to get back to
her about her application for legal custody despite her
repeated requests for information from social worker Hill.
Maternal grandmother testified that when G.M. was under her
care, there was no agreement with the agency that she would
keep the child away from Mother.
The trial court also considered the recommendations of the
GAL. On November 16, 2016, the GAL submitted a report in
which he recommended that the trial court grant CCDCFS's
request for permanent custody. The GAL report references
Mother and Father's history of drug addiction,
Mother's "numerous convictions for drug abuse,
" and the lack of a proper home to raise the children.
Accordingly, the GAL opined that the "parents have still
been unable to demonstrate an ability to work the case plan
and an ability to care for the three children."
At the hearing, the GAL reiterated his recommendation that
permanent custody was in the children's best interests.
The GAL stated that he had the opportunity to observe
maternal grandmother's visits with the children. He
stated that maternal grandmother appeared to have a bond with
the children. However, he characterized the visits as
"weird" and stated that the children acted
"wild" while they were with maternal grandmother.
When asked why he was recommending permanent custody as
opposed to legal custody to maternal grandmother, the GAL
Based on history. I know in talking to paternal grandmother,
she felt that things were out of control over at maternal
grandmother's house, and I tried to take that with a
grain of salt, but I know the history of the matter, the fact
that she allowed the children to continue - or allowed the
parents to continue to see the children.
The kids are doing very well right now. They're making
improvements on their learning deficiencies. But in no way -
I mean, maternal grandmother, I mean, there is no question
that she loves the children and the children love her. I
can't say that's not the case. It is.
maternal grandmother's love for the children, however,
the GAL stated that he did not believe legal custody to
maternal grandmother was in the children's best
On February 3, 2017, the trial court issued separate journal
entries terminating Mother's parental rights and ordering
J.F., G.M., and CM. to be placed in the permanent custody of
CCDCFS. In addition, the trial court denied Mother's
motion for legal custody to maternal grandmother. In the
journal entry for J.F., the court noted that J.F. has been in
the temporary custody of CCDCFS for 12 or more months of a
consecutive 22-month period. In each journal entry, the court
determined 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 one of
the child[ren]'s parents within a reasonable time or
should not be placed with either parent."
Mother now appeals from the ...