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In re S.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018

IN RE: S.C., ET AL. Minor Children Appeal By A.L., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 15914650

          ATTORNEY FOR APPELLANT Michael E. Stinn

          ATTORNEYS FOR APPELLEE For C.C.D.C.F.S. Michael C. O'Malley Cuyahoga County Prosecutor BY: Anthony R. Beery Assistant Prosecuting Attorney

          ALSO LISTED For Children Pamela A. Hawkins

          For Paternal Grandmother Robert E. Somogyi Kuenzi/Somogyi

          For Father Dean A. Colovas The Brownhoist Building

          Guardian Ad Litem James H. Schulz

          BEFORE: Celebrezze, J., Boyle, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          FRANK D.CELEBREZZE, JR, JUDGE

         {¶1} Appellant, A.L. ("appellant"), brings the instant appeal challenging the trial court's judgment granting permanent custody of her minor children, S.C., M.C., and B.C., to appellee, Cuyahoga County Department of Children and Family Services ("CCDCFS" or the "agency"). Specifically, appellant argues that the trial court abused its discretion in awarding permanent custody to CCDCFS rather than granting legal custody to the children's paternal grandmother or paternal great-aunt, CCDCFS failed to adequately consider placement with a relative as an alternative to permanent custody, and that the trial court's determination that CCDCFS made reasonable efforts to prevent the removal of the children is against the manifest weight of the evidence. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} The instant appeal pertains to the trial court's custody determination with respect to appellant's three children. Appellant is the children's mother, and the children's father is J.E. (hereinafter "Father"). The family moved from Vermont to Cleveland, Ohio in June 2015. Shortly thereafter, CCDCFS became involved with the family.

         {¶3} CCDCFS filed a complaint on October 22, 2015, alleging that the children were abused and neglected. Along with its complaint, CCDCFS filed a motion for emergency predispositional temporary custody, which the trial court granted. The agency's concerns pertained to the children's inappropriate sexualized behaviors that they were purportedly exhibiting towards each other and other children. The agency was concerned about appellant's failure to address the children's inappropriate behaviors, failure to ensure that the children maintained appropriate hygiene, and failure to meet the children's basic needs. The agency was also concerned about Father's failure to address the children's inappropriate behaviors, Father's own behavior and conduct towards the children, and Father's substance abuse issues.

         {¶4} During the pendency of the custody proceedings, appellant and Father were arrested in December 2015. In Cuyahoga C.P. No. CR-16-604251, [1] both parents pled guilty in April 2017 to rape, gross sexual imposition, disseminating matter harmful to juveniles, and endangering children, and were sentenced to ten years in prison. All three children were named victims in the criminal case.

         {¶5} A magistrate held a hearing on CCDCFS's complaint on June 30, 2016. The magistrate adjudicated the children to be neglected and abused, and placed the children in the temporary custody of CCDCFS. The trial court approved and adopted the magistrate's decision on July 22, 2016.

         {¶6} On September 6, 2016, the children's paternal grandmother, C.C. (hereinafter "C.C"), filed a motion to intervene and a motion for legal custody. The trial court granted C.C.'s motion to intervene on December 21, 2016.

         {¶7} Based on the parents' incarceration and unavailability to care for the children, CCDCFS filed a motion to modify temporary custody to permanent custody on September 14, 2016.

          {¶8} Father filed a motion for legal custody to the children's paternal great-aunt, E.K. (hereinafter "E.K "), on January 9, 2017.[2] Appellant filed a motion for legal custody to C.C. on January 30, 2017.

         {¶9} The trial court held a hearing on CCDCFS's motion for permanent custody on July 19, 2017. CCDCFS presented the following four witnesses: CCDCFS social worker Jamessa Motley, CCDCFS social worker April Long, B.C.'s therapist, Martin Wilin, and M.C.'s therapist, Victoria Ratliff

         {¶10} In addition to the agency's witnesses, C.C. and E.K. testified during the permanent custody hearing. The children's guardian ad litem, Jim Schulz (hereinafter "GAL"), submitted a written report and testified during the permanent custody hearing. The GAL recommended that the children be placed in the permanent custody of CCDCFS.

         {¶11} The permanent custody hearing ultimately concluded on December 14, 2017. On December 19, 2017, the trial court issued judgment entries and findings of fact in which it granted CCDCFS's motion for permanent custody and denied the motions for legal custody to C.C. filed by appellant and C.C. It is from these judgments that appellant filed the instant appeal on December 29, 2017.

         {¶12} Appellant assigns three errors for review:

I. The trial court abused its discretion in awarding permanent custody to CCDCFS and not to either [C.C. or E.K.] The trial court's orders should be vacated and this matter remanded for further proceedings.
II. The trial court's decision to grant permanent custody to CCDCFS was erroneous as a matter of law and should be reversed due to CCDCFS'[s] failure to give adequate consideration to relative placement as an alternative to permanent custody to CCDCFS.
III. The trial court's finding that CCDCFS made reasonable efforts is against the manifest weight of the evidence as the evidence shows a failure of diligent case planning.

         II. Law and Analysis

         {¶13} In her first assignment of error, appellant argues that the trial court abused its discretion in awarding permanent custody of the children to CCDCFS. Appellant contends that the trial court should have awarded legal custody of the children to C.C. and/or E.K.

         {¶14} To the extent that appellant argues that the trial court erred by failing to place the children in the legal custody of E.K., we note that E.K. did not file a motion to intervene in the matter or a motion for legal custody, and she is not a party to this appeal. Furthermore, E.K. did not submit and sign a statement of understanding for legal custody pursuant to R.C. 2151.353(A)(3). See In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657, ¶ 18. Because the trial court did not have authority to grant E.K. legal custody, we summarily overrule appellant's arguments pertaining to E.K. See In re A.D., 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, ¶ 14.

         {¶15} We further note that C.C, unlike E.K., did file a motion to intervene in the case on September 6, 2016. The trial court granted C.C.'s motion to intervene on December 21, 2016. After she was granted intervention, C.C. filed a motion for legal custody. However, she did not file an appeal challenging the trial court's judgment denying her motion for legal custody and granting permanent custody of the children to CCDCFS.

         {¶16} To the extent that appellant argues that the trial court erred by failing to place the children in the legal custody of C.C, the general rule is that '"[a] parent has no standing to assert that the court abused its discretion by failing to give [C.C] legal custody; rather, the challenge is limited to whether the court's decision to terminate parental rights was proper.'" In re L. W. at ¶ 23, quoting In re S.G., 3d Dist. Defiance No. 4-16-13, 2016-Ohio-8403, ¶ 52, citing In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶ 70. Accord In re N.M., 8th Dist. Cuyahoga No. 106131, 2018-Ohio-1100, ¶ 23. If permanent custody to CCDCFS is in the children's best interests, legal custody to a relative necessarily is not. In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 61, citing In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 11.

         {¶17} Accordingly, appellant's challenge to the trial court's judgment granting CCDCFS permanent custody is limited to whether the trial court improperly terminated her parental rights. With these principles in mind, we will proceed to review the trial court's judgment awarding permanent custody of the children to CCDCFS and terminating appellant's parental rights.

         A. Standard of Review

         {¶18} Parents have a constitutionally protected interest in raising their children. In re M.J.M., 8th Dist. Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That interest, however, is "'always subject to the ultimate welfare of the child.'" In re M.J.M., quoting In re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-Ohio-1151, ¶ 7.

         {¶19} A juvenile court's termination of parental rights and award of permanent custody to an agency is not reversed unless the judgment is unsupported by clear and convincing evidence. In re Dylan C, 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist.1997); In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48. "'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). The evidence must be more than a preponderance, but it does not rise to the level of certainty that is required beyond a reasonable doubt in criminal cases. Cross.

         {¶20} R.C. 2151.414 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). First, it 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 the following 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; (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; or (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. R.C. 2151.414(B)(1)(a)-(e). In re J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 41. Only one of the factors must be present for the first prong of the permanent custody analysis to be satisfied. In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657, at ¶ 28.

         {¶21} Second, when any one of the above factors exists, the trial court must analyze whether, by clear and convincing evidence, it is in the best interest of the children to grant permanent custody to the agency pursuant to R.C. 2151.414(D). Id

          B. R.C. 2151.414(B) Factors

         {¶22} In the instant matter, appellant does not challenge the trial court's finding under the first prong. Appellant acknowledges that the children cannot be placed with either her or Father within a reasonable time due to the parents' incarceration.

         {¶23} The trial court determined that the condition set forth in R.C. 2151.414(B)(1)(a) was satisfied. Regarding all three children, the trial court found that "the child cannot be placed with [appellant] or Father within a reasonable time or should not be placed with the parent * * * pursuant to [R.C.] 2151.414(E)."

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) for guidance. Under R.C. 2151.414(E), if the trial court determines, by clear and convincing evidence, that one or more of the factors specified in R.C. 2151.414(E)(1) through (16) exists as to 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-Ohio4991, [at] ¶ 42.

In re N.M., 8th Dist. Cuyahoga No. 106130, 2018-Ohio-1099, ¶ 24.

         {¶24} In this case, the trial court found by clear and convincing evidence that the factors set forth in R.C. 2151.414(E)(1), (2), (5), (6), (7)(c), (7)(d), (12), and (14) applied. The trial court's journal entries, which outline the applicable R.C. 2151.414(E) factors, provide, in relevant part:

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 parents have failed continuously and repeatedly to substantially ...

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