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In re D.F.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 25, 2019

IN RE D.F., ET AL. Minor Children [Appeal by S.F., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-15901514, AD-15901515, AD-15901516, AD-15901517, AD-15901518, AD-15901519, AD-15901520

          Rick L. Ferrara, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, JUDGE

         {¶ 1} Appellant-mother, S.F., ("Mother") appeals from the decision of the Juvenile Division of the Cuyahoga County Court of Common Pleas (the "juvenile court") terminating her parental rights and granting permanent custody of seven of her minor children to appellee, the Cuyahoga County Division of Children and Family Services ("CCDCFS" or "the agency"). For the reasons that follow, we reverse the juvenile court's decision.

         Factual Background and Procedural History

         {¶ 2} This case involves seven of Mother's nine minor children - her daughter D.F. (born on July 24, 2003), twin sons An.B. and Ar.B. (born on April 5, 2004), son D.B. (born on June 20, 2005), twin daughters Ti.B. and Ta.B. (born on February 15, 2008) and son J.F. (born on June 22, 2013).[1] M.B. is the father of An.B., Ar.B., D.B., Ti.B. and Ta.B. L.S. is the father of J.F. The paternity of D.F. has not been established.

         Adjudication and Temporary Custody to CCDCFS

         {¶ 3} On February 3, 2015, CCDCFS filed a complaint alleging that D.F. and J.F. were abused and that all of the seven children at issue were neglected. Specifically, the complaint alleged that Mother had left D.F. and J.F. alone overnight without supervision, that Mother had been arrested and charged with child endangering as a result of the incident and that Mother did not have appropriate housing for the children, i.e., there was not a sufficient number of beds for the children and the home was "observed to be dirty and in disarray." On February 24, 2015, the agency filed an amended complaint, seeking a disposition of temporary custody of all seven children to CCDCFS, and asserting new allegations. In its amended complaint, in addition to the prior allegations, the agency alleged that Mother had failed to ensure that the children attended school and that J.F. attended medical appointments and received immunizations.[2] CCDCFS also filed a motion for predispositional temporary custody of the children. The juvenile court granted the motion and, on March 5, 2015, all seven children were placed in the predispositional temporary custody of the agency.

         {¶ 4} CCDCFS filed a case plan that required Mother to (1) complete a psychological assessment and follow any recommendations for mental health services, (2) attend parenting classes and (3) address the needs of her children, including education, medical and safety needs. The permanency goal was reunification of the children with Mother. The juvenile court approved the agency's case plan but ordered that an amended case plan be filed "to include housing."

         {¶ 5} In May 2015, Mother admitted the allegations of a further amended complaint.[3] The juvenile court adjudicated D.F. and J.F. to be abused and all of the children to be neglected and committed the children to the temporary custody of CCDCFS.

         Extension of Temporary Custody

         {¶ 6} On December 24, 2015, the agency filed a motion for an extension of temporary custody. The agency acknowledged Mother had made progress with her case plan, having "completed parenting education and a psychological evaluation," but that she still needed to obtain appropriate housing for the children. The juvenile court granted the motion, extending temporary custody to August 3, 2016.

         {¶ 7} On July 20, 2016, CCDCFS filed a second motion to extend temporary custody. The agency asserted that "[a]lthough there has been substantial additional progress made on the case plan since the first extension of temporary custody, because all of the objectives have not yet been completed, the risk to the children has not been sufficiently reduced." CCDCFS stated that Mother was "engaged in substance abuse treatment and needs to demonstrate that she can maintain sobriety" and that she was "working with a parenting coach to learn to meet all of the children's needs in a structured environment."

         {¶ 8} Mother opposed a second extension of temporary custody. She filed a motion to terminate temporary custody and requested that she be granted legal custody of the children.

         {¶ 9} In October 2016, the guardian ad litem filed a report in which he indicated that Mother had moved into a six-bedroom townhouse in January 2016 that was fully furnished with beds for all of the children and that she had given birth to another child, E.F., in September 2015, who remained in her custody with protective supervision. He further reported that Mother was "cooperating with the case plan objectives," that weekend visits with Mother were "going well," that "[t]he children all seemed to be managed appropriately" during visits and that all of the children who were old enough to do so had expressed a desire to live with their mother. He recommended that Mother be given custody of the oldest children first with protective supervision and stated that if "things go well for several months," "reunification of all the children will be appropriate."

         {¶ 10} On December 29, 2016, the juvenile court granted the agency's motion to extend temporary custody and denied Mother's motion, concluding that "there has not been significant progress on the case plan and that progress had not been made in alleviating the cause of removal of the child from the home."[4] The custody plan remained reunification. February 3, 2017 was the "projected date for the safe return of the child[ren]" to Mother's home.

         CCDCFS' Motions to Terminate Temporary Custody

         {¶ 11} On January 27, 2017, CCDCFS filed a motion to terminate temporary custody and to return all of the children to Mother with six months of protective supervision by the agency. In support of its motion, CCDCFS stated:

In its efforts to facilitate reunification, CCDCFS developed a case plan for the family. CCDCFS states that it is in the best interest of the children to be returned home to the mother, because she has substantially complied with the case plan and has reduced the risk that caused the children to be removed. Specifically, the mother has completed parenting education and continues to engage in mental health services. Mother has also maintained her sobriety since February 2016 and has obtained stable housing. Furthermore mother has engaged in overnight visits with the children and has demonstrated an ability to properly parent and supervise the children.
Although the mother has made substantial progress on the case plan since the original order of temporary custody, as the family adjusts to being reunified, the family would benefit from continued involvement and support from CCDCFS.

         {¶ 12} A hearing on the motion was scheduled for March 30, 2017. Before the hearing date, an issue allegedly arose with respect to Mother's supervision of the children. In a report filed on March 27, 2017, the guardian ad litem stated that he had been "informed of recent incidents involving [Mother] leaving the children outside in the neighborhood without proper adult supervision * * * or * * * with inappropriate care givers." He did not provide any details in his report regarding these incidents, including when or where the incidents occurred or which of the children were involved. However, notwithstanding these incidents, the guardian ad litem recommended that overnight visits continue and that Mother first be given custody of the boys who were then in foster care with an order of protective supervision. He reiterated that "[i]f things go well for several months, reunification of all the children may be appropriate." On March 30, 2017, the magistrate suspended all visitation between Mother and her children. No reasons were provided in the record why visitation was suspended.

         {¶ 13} CCDCFS then reversed course. On April 28, 2017, the agency withdrew its prior motion to return the children to Mother and filed a motion seeking permanent custody of all seven children. The agency asserted that "[d]espite Mother's compliance and completion of case plan services, Mother has failed to benefit from the services, specifically parenting," and "has failed continuously and repeatedly to remedy the conditions causing the children to be placed outside the home." The agency claimed that although Ta.B., An.B. and Ar.B. were "cognitively delayed," Mother had allowed Ti.B., Ta.B., An.B. and Ar.B. to be "in the community, unsupervised" when visiting her and had "failed to ensure that D.F. attended school." The agency further alleged that Mother was "unemployed and has no source of stable income with which to provide for the basic needs of the children."

         {¶ 14} In the summer of 2017, the agency once again reversed course and filed motions requesting that legal custody of the children (except J.F.) be granted to several different relatives. The agency asserted that this would be "an appropriate disposition for the children" because

the mother, despite compliance and completion of case plan services, has been unable to show that she has benefited from said services and has been unable to reduce the risks that led to the removal of the children so that the children can safely return home. Specifically, CCDCFS referred mother to mental health services, parenting education, including a supportive parenting coach, and housing. Mother has not demonstrated an ability to supervise the children, nor an ability to identify and address the younger children's special needs.

         The agency indicated that the relatives at issue were willing and able to meet the children's needs and to provide permanent homes for them.

         {¶ l5} Mother, in turn, filed another motion to terminate temporary custody and requesting that legal custody of all seven children be returned to her. In support of her motion, Mother argued that she is "deeply bonded" with the children, that she has "appropriate, stable housing and the means to provide for her children's basic needs," that she had "complied with all case plan objectives," that she had "successfully completed months of overnight, weekend visits with all of her children," that she had "continually produced negative urine screens," that she had engaged in Frontline Services for additional support and that she has demonstrated that she is "well prepared for her children's return." At Mother's request, the magistrate appointed counsel for the children and conducted in camera interviews of the children.

         {¶ 16} In December 2017, the guardian ad litem filed an updated report. He stated that he believed that it would be in children's best interest if unsupervised visits were re-initiated and the children were transitioned to Mother's custody with an order of protective supervision.

         {¶ 17} The juvenile court judge held a hearing on CCDCFS' motion to modify temporary custody to permanent custody as to J.F. and Mother's motion seeking legal custody of J.F. The magistrate held a hearing on the pending motions relating to the other children. Transcripts from these hearings are not in the record.

         {¶ 18} In February 2018, the juvenile court denied all of the pending motions, concluding that neither the agency nor Mother had presented sufficient evidence establishing that modification of temporary custody was in the children's best interest. The juvenile court found that Mother had substantially complied with the objectives of the case plan but that progress had not been made in alleviating the cause for the removal of the children from Mother's home. The juvenile court ordered that temporary custody be continued and that CCDCFS refer Mother to in-home parenting supportive services. The custody plan remained reunification.

         {¶ 19} Several months later, CCDCFS once again sought permanent custody of all seven children, filing new motions to modify temporary custody to permanent custody. In support of its request for permanent custody, the agency asserted

Mother has engaged in case plan services but has failed to demonstrate any appreciable benefit from the services. * * * Mother lacks appropriate judgment and parenting skills. Mother is unable to manage the child's behavior during visits. Mother also discusses age inappropriate things with the child. * * * Mother has been referred to an additional in-home parenting class as ordered by the Court. Mother failed to cooperate with the parenting coach and, as a result, the service provider has terminated] mother from their program.

         Permanent Custody Hearing

         {¶ 20} In October 2018, the juvenile court held a hearing on the agency's motions to modify temporary custody to permanent custody. Shortly before the hearing, the guardian ad litem filed an updated report in which he recommended that the juvenile court grant permanent custody of all seven children to CCDCFS. The guardian ad litem indicated that although Mother had completed case plan services and all of the children continued to express a desire to live with Mother, she had had no unsupervised visits with the children since concerns had been raised "[i]n early 2017 * * * about the mother leaving her children unsupervised outside." He further reported that "Beech Brook provided a parenting/visitation coach who notes that the mother 'has not made much progress * * * [she] was * * * unable to follow through or utilize services and assistance that were being provided to her.'"

         {¶ 21} Three witnesses testified on behalf of CCDCFS at the permanent custody hearing - (1) April Palidar, a CCDCFS social worker, (2) Jori Beams-Baker, a Beech Brook visitation coach, and (3) Kamilah Cunningham, the supervisor of Beech Brook's supportive visitation program. Palidar, who began working with the family in May 2018, testified that she believed an award of permanent custody was appropriate because she did not "think mom has demonstrated the ability to provide for the kids based on their special needs and their mental health issues." Beams-Baker, who assisted the family with supportive visitation in the spring and summer of 2018, testified regarding Mother's "lack of progress" during supportive visitation. Cunningham testified regarding the goals of the supportive visitation program and the history of Mother's participation in the supportive visitation program.

         {¶ 22} At the permanent custody hearing, the juvenile court also heard from the guardian ad litem regarding his report and recommendation and the children's counsel regarding the children's desire to be reunified with Mother. The children's counsel requested that if the juvenile court found it was not appropriate to return the children to their Mother that the agency be required to "look at [other] relatives and consider whether legal custody [with those relatives] was an option" rather than "having the right to their mother terminated."

         {¶ 23} Mother did not testify and did not present any witnesses at the permanent custody hearing. She requested that the court return all of the children to her with protective supervision.

         The Trial Court's Decision to Grant Permanent Custody to CCDCFS

         {¶ 24} On December 14, 2018, the trial court granted CCDCFS' motion to modify temporary custody to permanent custody, terminating the parental rights of Mother and the children's fathers and awarding permanent custody of all seven children to CCDCFS. Based on the evidence presented at the hearing and the recommendation of the guardian ad litem, the juvenile court found that "the allegations" of the agency's motion to modify temporary custody to permanent custody "have been proven by clear and convincing evidence." The juvenile court further found, with respect to Mother, that (1) CCDCFS had made reasonable efforts to reunify the children with Mother, (2) notwithstanding reasonable case planning and diligent efforts by the agency to assist Mother to remedy the problems that caused the children to be placed outside Mother's home, Mother had failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside Mother's home and (3) it was in the children's best interest to grant permanent custody to the agency. The juvenile court also found that the children were not members of a federally recognized Indian tribe, were not eligible for membership in a federally recognized Indian tribe as the biological child of a member of a federally recognized tribe and were not in the custody of an Indian custodian.

         {¶ 25} Mother appealed, raising the following sole assignment of error for review:

The trial court abused its discretion in awarding permanent custody because the [agency] did not present sufficient, clear and convincing evidence necessary for the order granting permanent custody.

         Law and Analysis

         The Juvenile Court's Decision to Grant Permanent Custody ...


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