Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re J.D.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

IN RE J.D., ET AL. Minor Children Appeal by M.D., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD17902069 and AD17902070

          Thomas 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

          FRANK 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.

         I. 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 ("HEAP").[1]

         {¶ 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 abeyance.

         {¶ 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 grandmother.

         {¶ 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.

         The 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.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.