Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE J.D., ET AL. Minor Children Appeal by M.D., Mother
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case Nos. AD17902069 and AD17902070
A Rein, for appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Rachel Eisenberg and Barbara Martincic,
Assistant Prosecuting Attorneys, for appellee.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, PRESIDING JUDGE.
1} Appellant, M.D. ("Mother"), brings the
instant appeal challenging the trial court's judgment
granting permanent custody of her two minor children, J.D.
and A.D., to appellee, Cuyahoga County Department of Children
and Family Services ("CCDCFS" or the
"agency"). Specifically, Mother argues that 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. After a thorough review of the record and
law, this court affirms.
Factual and Procedural History
2} The instant matter pertains to the trial
court's custody determination with respect to two minor
children: J.D. (born on September 9, 2012) and A.D. (born on
April 20, 2014) who were six and four years old at the time
of the permanent-custody hearing in March 2019. The
children's father is D.M. ("Father"). Mother
and Father are married.
3} The agency originally became involved with the
family in November 2016 after the agency learned that the
family did not have heat in their home. The agency provided
the family assistance with the home's utilities through
the Home Energy Assistance Program
4} A few months later, the agency filed a complaint
and sought protective supervision of the children because of
other issues, such as cleanliness of the home, and the
parents' mental health and substance abuse issues. On
February 1, 2017, the agency filed a complaint alleging the
children to be neglected and dependent. Specifically, the
complaint alleged that "Mother has [a] substance abuse
problem, specifically cocaine, which interferes with her
ability to provide appropriate care for the children"
and "has mental health issues which interfere with her
ability to provide a stable home for the children." The
complaint also alleged that "Mother has an anger
management problem which interferes with her ability to
provide a stable home for children," noting that
"Mother is verbally aggressive toward [F]ather in the
presence of the children and her behavior is erratic."
With regard to Father, the complaint alleged that he
"has been diagnosed as marijuana and alcohol dependent
and recommended for intensive out-patient treatment. Father
has not yet started treatment." In addition, the
complaint noted that "Father has mental health issues
which require ongoing medication and counseling. Father is
compliant with medication but has not yet started
counseling." Further, "Father minimizes the effect
that [Mother's] aggressive behavior has on the children.
Father continues to reside with Mother and the children
despite [Mother's] erratic behavior."
5} After the complaint was filed, the trial court,
on its own motion, scheduled the matter for a
predispositional emergency temporary-custody hearing on
February 14, 2017. A hearing was held on the court's
motion on February 14, 2017. After hearing testimony on the
motion, the trial court held its own motion in abeyance and
issued orders to Mother and Father and ordered the children
to remain in the parents' custody.
6} The trial court found that "Father has been
referred for a substance abuse assessment and a mental health
assessment. Father has engaged in services. Mother has been
referred for a mental health assessment and a substance abuse
assessment. Mother has not engaged in services and continues
to use cocaine." The trial court further ordered Mother
"to complete a substance abuse and mental health
assessment. Mother may not miss any appointments for these
services. If [M]other misses an appointment this case is to
be brought before the [c]ourt immediately." The trial
court then continued the matter for a final pretrial on April
13, 2017, and trial on April 26, 2017.
7} On March 14, 2017, the trial court held a hearing
on a notice of a violation of a court order. Mother had
previously submitted drug screens on February 24 and February
27, 2017. Mother tested positive for cocaine on both drug
screens. Mother had also submitted a drug screen on March 10,
but the results were pending as of the date of the hearing on
March 14. As a result of the February 24 and 27 positive drug
screens, the trial court found Mother to be in violation of
its February 14, 2017 order. The trial court again held its
predispositional emergency temporary-custody motion in
8} A final pretrial hearing was held on April 13,
2017, and the matter was continued for trial on April 26,
2017. At trial, the magistrate adjudicated the children to be
neglected and dependent. As a result, the magistrate awarded
Mother legal custody of the children and ordered the children
to be placed in the protective supervision of the agency. The
magistrate also ordered that the trial court be notified
immediately if Mother tested positive for drugs or if Mother
missed treatment or service appointments. This order was
adopted by the trial court on May 15, 2017.
9} Thereafter, on June 9, 2017, the agency filed a
notice of violation of court order stating that Mother had
left her substance abuse treatment program as of May 16,
2017. On June 12, 2017, the agency filed a motion to modify
the trial court's May 15, 2017 order and sought
predispositional emergency temporary custody to Father.
10} On June 23, 2017, the trial court held a hearing
on the agency's motion. The trial court granted the
agency's motion and ordered predispositional temporary
custody of the children to Father. The trial court ordered
Mother to move out of the family home and issued a no-contact
order between Mother and the children.
11} The agency then, on October 11, 2017, filed a
motion to modify protective supervision to temporary custody
to the agency, and a motion for predispositional temporary
custody to the agency. The agency filed this motion because
Father had tested positive for cocaine and marijuana.
12} On November 7, 2017, the trial court held a
hearing on the agency's motion for predispositional
temporary custody. The trial court granted the agency's
motion and placed the children with their paternal
13} The trial court then held a dispositional
hearing on January 30, 2018, on the agency's motion to
modify protective supervision to temporary custody and
granted the agency's motion. The trial court found that
"[t]here has not been significant progress on the case
plan by [M]other or by [F]ather and progress has not been
made in alleviating the cause for the removal of the
child[ren] from the home." The trial court terminated
protective supervision and ordered the children committed to
the temporary custody of the agency. The children remained in
the care of their paternal grandmother.
14} On April 30, 2018, the agency filed a motion to
modify temporary custody to permanent custody. A hearing on
the agency's motion was continued on several occasions.
On one occasion, on September 20, 2018, the matter was
continued because Mother was removed from the courthouse by
deputies because Mother had a verbal outburst directed toward
the paternal grandmother.
15} Then, on November 27, 2018, the magistrate
conducted an annual review. At the annual review, the
magistrate issued a decision continuing the children in the
temporary custody of the agency. On December 13, 2018, the
trial court issued a judgment entry adopting the
magistrate's decision. The matter was continued to
February 6, 2019, for trial on the agency's motion to
modify temporary custody to permanent custody. However,
Mother and Father failed to appear on February 6, 2019, and
the matter was continued to March 13, 2019.
16} A hearing was held on the agency's motion on
March 13, 2019. Prior to hearing testimony on the
agency's motion, Father, represented by counsel, agreed
to the agency's motion to modify temporary custody to
permanent custody, voluntarily relinquishing his parental
rights. CCDCFS social worker Halli Martin and the paternal
grandmother testified at the permanent-custody hearing on
behalf of the agency. Mother testified on her own behalf.
Mother's counsel, at the close of testimony, made an oral
motion seeking the trial court to consider granting legal
custody to the paternal grandmother.
17} On March 19, 2019, the trial court issued
separate journal entries for each child granting the
agency's motion to modify temporary custody to permanent
custody. The trial court's journal entries also denied
Mother's oral motion for legal custody to the paternal
grandmother. In granting the agency's motion, the trial
court made the following findings:
Upon due consideration of the evidence and testimony
presented, as well as the report from the Guardian ad Litem,
the Court finds by clear and convincing evidence that the
child[ren] cannot be placed with [M]other or [F]ather within
a reasonable time or should not be placed with [M]other or
[F]ather for the following reasons:
The child[ren] ha[ve] been in temporary custody of the
Cuyahoga County Division of Children and Family Services
which is for twelve (12) or more months of a consecutive
twenty-two (22) month period. The child[ren] ha[ve] been [in]
temporary custody since November 8, 2017.
Court further finds:
Following the placement of the child[ren] outside the
child[ren'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[ren] to be placed outside the home, [M]other and
[F]ather failed continuously and repeatedly to substantially
remedy the conditions causing the child[ren] to be placed
outside the child[ren's] home.
Mother has a chronic mental illness, chronic emotional
illness, intellectual disability, and chemical dependency
that is so severe that it makes the parent unable to provide
an adequate, permanent home for the child[ren] at the present
time and, as anticipated, within one (1) year after the Court
holds the hearing in this matter.
Mother has neglected the child[ren] between the date the
original complaint was filed and the date of the filing of
this motion by the failure to regularly visit, communicate,
and support the child[ren].
Mother has demonstrated a lack of commitment towards the
child[ren] by failing to regularly support, visit,
communicate when able to do so, or by her other actions, has
shown an unwillingness to provide an adequate, permanent home
for the child[ren].
Mother is unwilling to provide food, clothing, shelter, and
other necessities for the child[ren] or to prevent the
child[ren] from suffering emotional or mental neglect as
evidenced by her unwillingness to successfully complete a
case plan so she can provide care for the child[ren].
Father, with the assistance of counsel and the guardian ad
litem, has agreed to permanent custody of the child[ren].
18} It is from this judgment that Mother filed the
instant appeal. Mother assigns two errors for review:
I. The trial court's decision to deprive legal custody to
Mother and to grant the [a]gency's [motion to modify
temporary custody to permanent custody] was against the
manifest weight of the evidence and was not clearly and
convincingly supported by the evidence.
II. The trial court erred by granting the [a]gency's
motion [to modify temporary custody to] permanent custody
against [M]other, as the [a]gency failed to meet its burden
as required under R.C. 2151.414.