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In re J.F.

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018

IN RE: J.F., ET AL. MINOR CHILDREN Appeal By Y.M., Mother

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 14915855, AD 16906702, and AD 16907831

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender, Erika B. Cunliffe, Morgan L. Pirc Assistant Public Defenders

          ATTORNEYS FOR APPELLEE For CCDCFS Michael C. O'Malley Cuyahoga County Prosecutor, Anthony R. Beery Assistant Prosecuting Attorney Cheryl Rice Assistant Prosecuting Attorney.

          ALSO 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 Kozel

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

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, J.

         {¶1} 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 evidence presented.

         {¶2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

         I. Procedural and Factual History

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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").

         {¶9} 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 granted.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} 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.

         {¶18} 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.

         {¶19} 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]."

         {¶20} 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.

         {¶21} 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.

         {¶22} She explained:

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.

         {¶23} 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."

         {¶24} 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.

         {¶25} 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.

         {¶26} 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."

         {¶27} 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 responded:

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.

         Despite 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 interests.

         {¶28} 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."

         {¶29} Mother now appeals from the ...


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