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In re Z.D.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 13, 2019

IN RE Z.D. A Minor Child [Appeal by A.R., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD 17 902707

          Scalise Legal Services, L.L.C., and Stephanie B. Scalise, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Cheryl Rice and Warren W. Griffin, Assistant Prosecuting Attorneys, for appellee.



         {¶ 1} In this appeal, A.R., Mother ("Mother"), challenges the trial court's October 2018 judgment granting the motion of appellee Cuyahoga County Department of Children and Family Services ("CCDCFS" or "Agency") for permanent custody of her child, Z.D. For the reasons that follow, we affirm.

         Procedural History

         {¶ 2} The child at issue, Z.D., was born in Ohio in November 2016, to Mother and alleged Father, P.D.[1] Three days after the child was born, the Agency filed a complaint alleging that the child was dependent and requesting a disposition of temporary custody. The Agency also filed a motion for emergency pre-dispositional temporary custody, which was granted the same day.

         {¶ 3} The complaint was unable to be resolved within the statutory 90-day timeframe, so CCDCFS filed a new complaint for dependency and temporary custody, as well as a motion for emergency custody in February 2017; the motion for emergency custody was immediately granted.

         {¶ 4} After a hearing in May 2017, Z.D. was adjudicated a dependent child. A dispositional hearing was also held in May 2017, after which the child was committed to the Agency's temporary custody. The matter was set for review to take place in November 2017. Prior to the set November date, however, the Agency filed a motion for an extension of temporary custody in order to allow Mother additional time to work on her case-plan objectives. CCDCFS's motion was granted and temporary custody was extended until May 2018.

         {¶5} At the end of April 2018, the Agency filed a motion to modify temporary custody. Three pretrials were held on the motion, and the trial on the motion took place in October 2018. At the start of the hearing, Mother's attorney requested a continuance because Mother was not present and counsel sought the continuance so that she could attend; the trial court denied the request. At the conclusion of the trial, the court granted the Agency's motion for permanent custody; it thereafter memorialized its findings in a judgment entry. Mother now appeals, asserting the following sole assignment of error: "The trial court committed plain error by relying almost exclusively on cumulative hearsay evidence to support granting a motion for permanent custody to CCDCFS."


         {¶ 6} The sole witness at the trial was the social worker assigned to the case, Nicole Fougerousse (“Fougerousse”). The child's guardian ad litem (“GAL”), who had previously submitted her report to the court, gave a narrative summation of the report and was subject to cross-examination by the parties.

         {¶ 7} The testimony and record established the following facts. At the time of trial, Z.D. was 23 months old, and since birth, had been living continuously in Ohio with maternal grandfather and his girlfriend. Mother had not seen the child in person since the child was six weeks old, when Mother left for Florida and had not since returned to Ohio. Thus, Mother did not attend any of the proceedings relative to this appeal, including, as mentioned, the trial. Mother went to Florida to live with Z.D.'s alleged Father, who had never seen Z.D. in person. Mother and alleged Father had a domestically violent relationship.

         {¶ 8} The record demonstrates that Z.D. is Mother's fifth child. The four other children were not in Mother's care. Three of them were in the care of maternal grandfather and his girlfriend (since April 2017); and the other child was in the care of paternal relatives.

         {¶ 9} Social worker Fougerousse, who was involved in the case nearly from its inception, testified that a case plan was developed for Mother and the goal was reunification. The objectives of the plan included Mother completing a psychological evaluation, addressing mental health issues, securing a stable source of income, obtaining appropriate housing, and addressing domestic violence issues with alleged Father.

         {¶ 10} The social worker testified that shortly after the initial complaint was filed, Mother told her of her plan to move to Florida. She talked to Mother about starting with the objectives of the case plan in Ohio, but Mother stated that she was already involved in domestic violence support groups in Florida. The ...

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