The opinion
[Cite as In re T.S., 2021-Ohio-2034.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE T.S. :
: No. 110015
A Minor Child :
:
[Appeal by M.S., Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD-17907163
Appearances:
Kelly M. Zacharias, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee Cuyahoga County Division of
Children and Family Services.
EMANUELLA D. GROVES, J.:
Appellant-Father, M.S. (“Father”), appeals from the judgment of the
juvenile court awarding permanent custody of his daughter, T.S. (d.o.b.
February 12, 2011), to the Cuyahoga County Division of Children and Family
Services (“CCDCFS” or “the agency”). For the reasons set forth below, we affirm the
decision awarding permanent custody to the agency.1
Procedural History
On November 15, 2016, CCDCFS filed a complaint and a motion for
predispositional temporary custody alleging that T.S.’s brother Te.S. (d.o.b.
March 11, 2014) was abused and neglected and that T.S., her sister T.W. (d.o.b.
November 10, 2006), and brother Ty.S. (d.o.b. September 21, 2007) were neglected
and dependent. The complaint alleged that on November 7, 2016, Te.S. suffered
second-degree burns from scalding water on his legs and chest. The complaint also
alleged that Mother’s explanation of the incident was inconsistent with the nature
and severity of Te.S.’s injuries. It alleged that Mother failed to provide immediate
medical care because mother waited until the next day to take Te.S. to the hospital.
The complaint also alleged that Mother did not have stable housing. As to Father,
the complaint alleged that he had established paternity for T.S. and was the alleged
father of Te.S. but had not established paternity. The complaint alleged that Father
had failed to support, visit, or communicate with either child consistently.
The children were placed in predispositional temporary custody of the
agency on December 1, 2016. The original complaint was not able to be resolved
within the statutory 90-day time frame under R.C. 2151.28(B)(3). CCDCFS
dismissed that complaint and refiled it on February 10, 2017. The predispositional
1 Mother has also appealed this decision. She is not a party to this appeal, however,
and will therefore only be minimally discussed.
placements with the agency for the children continued effective February 15, 2017.
The second complaint could not be resolved within the 90-day timeframe and was
also dismissed.
On May 5, 2017, CCDCFS refiled the complaint, which is the
underlying case in this appeal. In addition to the aforementioned allegations, the
complaint noted that Mother had pled guilty to a felony charge of attempted child
endangering. This plea took place on April 5, 2017. On May 8, 2017, the court
granted the agency’s motion for predispositional temporary custody finding that it
was in the best interest of the children to be placed in the custody of the agency.
A combined adjudicatory and dispositional hearing was held on
July 31, 2017. The assigned social worker, Ashley Brown, testified that she had been
informed that the Father had been recently released from prison and was residing
in a homeless shelter at 2100 Lakeside Avenue, Cleveland, Ohio. She made attempts
to locate him there but was not successful. Father did not attend the hearing.
T.S., Ty.S., and T.W. were adjudicated neglected and dependent and
placed in the temporary custody of the agency. Te.S. was adjudicated abused and
neglected and placed in the temporary custody of the agency.
Mother was able to make progress on the case plan. On
November 27, 2017, the juvenile court returned legal custody to Mother with an
order of protective supervision.
After the children returned home, the family experienced some
homelessness. T.S. displayed some behavioral and mental health issues at school.
Father was not active in the case at this time.
On May 21, 2018, the agency filed a motion to withdraw its motion to
terminate protective services and filed a motion to extend protective services.
On August 20, 2018, the agency filed a motion to modify protective
supervision back to temporary custody and a motion for predispositional temporary
custody. Mother had ceased following case plan objectives. Father was still not
involved in the case. The children were placed in predispositional temporary
custody on August 28, 2018. Helen Rhynard, Guardian ad Litem (“GAL” or
“Rhynard”) filed a report supporting temporary custody to the agency. The children
were placed with, D.E., a maternal aunt initially. On November 21, 2018, two years
after the initial incident, Father entered the case by filing a motion for legal custody
of T.S. The agency determined that Father did not have a residence and was residing
in a homeless shelter. He did provide the paternal grandmother’s information to
the agency, but she was unable to be a placement for T.S.
On January 28, 2019, the court held a disposition review hearing.
Father’s attorney was present for that hearing but represented that she had not had
contact with Father since she filed the motion for legal custody in November. She
also indicated that he had not contacted her since that time, and the contact
information she had for him was no longer good. As a result of those factors, the
motion was withdrawn.
The court proceeded with the agency’s motion for temporary custody.
The social worker indicated that the children had to be removed from maternal aunt
D.E.’s custody due to substance abuse issues and lack of supervision. The juvenile
court granted the agency’s motion for temporary custody.
As of May 2019, Father had become active in the case. Mother had
agreed to share her visitation time with him. He was given a case plan objective of
being able to provide for T.S.’s basic needs. Substance abuse was identified as an
issue for him and addressing it was part of his case plan.
On June 21, 2019, the agency filed a motion to modify temporary
custody of the children to permanent custody. In the supporting brief, CCDCFS
stated that a case plan had been approved by the juvenile court, that noted that
Father had recently expressed interest and engaged in services; however, he did not
have safe and stable housing for his child and continued to reside in a homeless
shelter. The majority of the motion addressed Mother’s issues.
On June 17, 2020, Father filed a motion for legal custody of T.S. After
a dispositional hearing on September 3, 2020, the juvenile court terminated
Mother’s and Father’s parental rights and committed the children to the permanent
custody of CCDCFS.
Dispositional Hearing
At the dispositional hearing, CCDCFS presented the testimony of
social worker, Christopher Walters (“Walters”), who was assigned to the case in
January 2019. CCDCFS also presented the testimony of Willisa Sharp (“Sharp”) and
Angela Quinn (“Quinn”) who respectively, actively supervised the visits, and
supervised the space where visits were held.
Sharp’s responsibility was to supervise Mother’s visits, so she did not
particularly pay attention to Father’s visits. She believed he attended all but one
visit and Father and daughter seemed bonded and happy. Quinn testified that she
did not actively supervise visits, but there were a few situations that stood out, one
being a conflict between Mother and Father that ended up requiring staff to separate
them. Quinn disagreed with Sharp’s testimony, indicating that Father did not attend
all of the visits, that they saw Mother more often than Father. Quinn indicated that
the only real issue they had with Father was that he came to the visits under the
influence and had to be reminded more than once not to do so.
Walters testified he became the caseworker in January 2019. At that
time, Father’s case plan objectives were to be able to meet the basic needs of his child
and address substance abuse issues through treatment.
When Walters was first assigned to the case, Mother was adamant
that she did not want to engage in services. Father indicated that he engaged in
services at Recovery Resources and provided Walters with an assessment from
December 2019, but never followed up with a certificate of completion. As Father
subsequently came to the visits under the influence, Walters believed Father was not
seriously trying to address his substance abuse issues. Father also failed to provide
proof of employment. While Father texted the Walters, what appeared to be pay
stubs, they were not sufficient for him to verify Father’s employment.
Walters testified that CCDCFS attempted to identify appropriate
relatives, who might provide care for the children. Several relative placements had
been attempted earlier in the case and failed. Consideration was given to the
paternal grandmother; however, it was ultimately determined she could not take
custody.
The GAL was sworn in to give an oral report. Rhynard testified that
she had been assigned to the case since then. She had not had much contact with
Father. During the pendency of the case Father has consistently lived in a homeless
shelter, continues to have substance abuse issues, and has not engaged in services
that she is aware of. She testified that Father does visit, but she does not believe he
is in a position to take custody of his daughter.
Rhynard noted that the children have developed significant
behavioral and mental health issues over the course of this case. Rhynard testified
that she does not believe either parent can address the needs of the children within
a reasonable time as neither parent has addressed their own issues. In her written
report, Rhynard indicated no appropriate relatives were available.
Following the hearing, the juvenile court granted CCDCFS’s motion
for permanent custody of the children.
Father now appeals, assigning the following errors for our review:
Assignment of Error No. 12
2 Although Father’s assignment of error references “children,” his appeal solely
addresses his daughter, T.S., and not the other children.
Permanent Custody of the children was against the manifest weight of
the evidence.
Assignment of Error No. 2
The Court erred in granting permanent custody because the matter
should have been continued due to the COVID 19 pandemic.
In his first assignment of error, Father argues that the decision to
grant permanent custody was against the manifest weight of the evidence.
Specifically, he argues that 1) he met his case plan objectives, 2) the agency failed to
assist him in achieving or failed to verify his completion of case plan objectives, and
that 3) the juvenile court erred in finding it was in the best interest of the child to
grant permanent custody.
It is well established that a parent has a fundamental right to raise
and care for his or her child. In re L.M., 8th Dist. Cuyahoga No. 106072, 2018-Ohio-
963, citing In re. C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28; In
re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 40. Termination
of parental rights has been recognized as “the family law equivalent of the death
penalty in criminal cases.” In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and
103367, 2015-Ohio-4991, citing In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-
Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776
N.E.2d 485, ¶ 14.
An appellate court will not reverse a juvenile court’s decision
awarding permanent custody to an agency if the judgment is supported by clear and
convincing evidence. In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560,
¶ 28. “Clear and convincing evidence” is that measure or degree of proof that is more
than a “preponderance of the evidence,” but does not rise to the level of certainty
required by the “beyond a reasonable doubt” standard in criminal cases. In re K.S.,
8th Dist. Cuyahoga No. 109928, 2021-Ohio-694, citing In re M.S., 8th Dist.
Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95
Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon
Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It
“produces in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established.” In re K.S. at ¶ 15, citing In re M.S. at ¶ 18.
The termination of parental rights is governed by R.C. 2151.414.
In re M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 22. R.C. 2151.414
sets forth a two-part test courts must apply when deciding whether to award
permanent custody to a public services agency.
First Prong: R.C. 2151.414(B)(1)(a)-(e)
Under the first prong, the juvenile court must consider whether clear
and convincing evidence established at least one of the following five factors:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child’s parents 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 twelve
or more months of a consecutive twenty-two-month period, or the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
(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).
Only one of the factors must be present for the first prong of the
permanent custody analysis to be satisfied. In re S.S., 8th Dist. Cuyahoga No.
109356, 2020-Ohio-3039, ¶ 28, citing In re L.W., 8th Dist. Cuyahoga No. 104881,
2017-Ohio-657, ¶ 28.
In this instance, the juvenile court determined that subsection (a) was
satisfied and specifically that the child had not been in the temporary custody of
CCDCFS for twelve or more months of a consecutive twenty-two-month period (at
the time of the filing for permanent custody), and the child cannot be placed with
either of the child’s parents within a reasonable time or should not be placed with
the child’s parents.
With respect to Father, the court found that:
(1) Father has a chemical dependency that is so severe that it makes
him unable to provide an adequate permanent home for the child at the
present time, and, as anticipated, within one year after the hearing of
the matter.
(2) Father had neglected the child between the date of the original
complaint was filed and the date of the filing of the motion by the failure
to regularly visit, communicate, and support the child.
(3) Father demonstrated a lack of commitment towards the child by
failing to regularly support, visit, communicate with the child when
able to do so.
(4) Father is unwilling to provide food, clothing, shelter, and other
necessities for the child or to prevent the child from suffering emotional
mental neglect, as evidenced by his unwillingness to successfully
complete a case plan so he can provide care for the child.
Father argues that his case plan objectives were to make himself
known to the agency and to address his substance abuse issues. However, in
addition to that, the case plan called for him to show an ability to meet his child’s
basic needs. Clearly, Father made himself known to the agency, albeit two years
after the agency first got involved with his child.
Father self-reported that substance abuse was an issue for him. The
only testimony on the record as to his recovery, was that he provided Walters with a
copy of a substance abuse assessment from Recovery Resources. The assessment
was dated in December 2019 but was not produced to Walters until February 2020.
Father never provided any additional information. Walters acknowledged that he
did not request nor did he receive a release of information from Father in order to
obtain further information. Walters explained to the juvenile court that he
monitored some of the visits between Father and child. He observed that Father
was high during at least two visits, and he took that to mean Father was not
addressing the goal of getting his substance abuse under control. No evidence was
presented to contradict Walters’s observation during trial.
As far as Father’s living and work situations, the only testimony at
trial was that Father had been homeless throughout the pendency of the case and
that he had not provided verifiable proof of income. Walters testified that he did not
refer Father for housing assistance. There is no evidence in the record that Father
ever obtained or maintained housing. Father also failed to provide evidence of
employment. Walters testified that Father texted him a snapshot with alleged check
stubs that were not verifiable. He asked Father to provide better documentation;
however, Father did not do so.
There was clear and convincing evidence that Father was unwilling or
unable to provide food, clothing, shelter, and other necessities for the child and to
prevent the child from suffering emotional mental neglect as evidenced by his
unwillingness to complete a case plan. Although Father attended visits towards the
later stages of her time in custody, there was clear and convincing evidence that
Father neglected the child between the date the original complaint was filed and the
date of the filing of the motion by failing to regularly visit, communicate, and
support the child. Thereby there was clear and convincing evidence presented to
support the juvenile court’s finding that the child could not be placed with either
parent within a reasonable time, satisfying the first prong of the permanent custody
determination.
Second Prong: R.C. 2151.414(D)
The second prong requires the juvenile court to assess whether it has
been established by clear and convincing evidence, that granting permanent custody
to the agency is in the best interest of the child. We review a trial court’s best-interest
determination under R.C. 2151.414(D) for an abuse of discretion. In re D.A., 8th
Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. In this regard, “[a] trial court’s
failure to base its decision on a consideration of the best interests of the child
constitutes an abuse of discretion.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-
Ohio-314, ¶ 60, citing In re T.W., 8th Dist. Cuyahoga No. 85845, 2005-Ohio-5446,
¶ 27, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991).
R.C. 2151.414(D)(1) sets forth best-interest factors that the court must
consider when making the best-interest determination under R.C. 2151.414(D)(1),
including:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child * * *;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of
a consecutive twenty-two-month period * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
The juvenile court has considerable discretion in weighing these
factors. In re D.A. at id. “The court must consider all of the elements in R.C.
2151.414(D) as well as other relevant factors.” In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. “There is not one element that is given
greater weight than the others pursuant to the statute.” Id.
In the instant case, the juvenile court noted that it had considered all
of the factors contained in R.C. 2151.414(D)(1) and determined that a grant of
permanent custody was in the best interests of the child and that the child could not
be placed with one of the child’s parents within a reasonable time or should not be
placed with either parent.
However, Father argues that clear and convincing evidence was not
presented showing that permanent custody was in the best interest of the child. We
disagree. The evidence showed that T.S. was well bonded with her siblings and
appeared to be bonded with Father. T.S. has had difficulties in foster care, but is
currently in a placement with her older sister, T.W., and has begun to improve.
Rhynard testified that the children flip-flopped between wanting to be with Mother
and wanting to stay in their current placements. There was no testimony regarding
T.S.’s wishes concerning Father. At the time the motion for permanent custody was
filed, the child had been in custody approximately ten months of the past 22
consecutive months.3 During custody, the child has been in multiple placements.
3 At the time of the dispositional hearing, the child and her siblings had been in
custody over two years.
She has displayed increasingly volatile behavior and suffers from PTSD and
depression. Rhynard indicated that T.S. is in need of a permanent placement and
that neither parent was in a position to provide that placement in a reasonable
amount of time, nor were they equipped to address T.S.’s issues.
After considering all relevant factors pursuant to R.C. 2151.414(D)(1),
the juvenile court determined by clear and convincing evidence that a grant of
permanent custody was in the best interests of the child. Our review reflects that
this determination was supported by competent, credible evidence in the record.
In addition to the findings in R.C. 2151.414(D)(1), the juvenile court
explicitly found that all the findings in R.C. 2151.414(D)(2)(a)-(d) were present in
this case. When all those factors apply, R.C. 2151.414(D)(2) necessitates a
determination that “permanent custody is in the best interest of the child” and
requires that the court “shall commit the child to the permanent custody of a public
children services agency * * *.” The juvenile court found as follows:
The Court further finds that the child has been in the agency’s custody
for two years and no longer qualifies for temporary custody pursuant
to division (b) of section 2151.415 of the Revised Code;
That one or more of the factors in division (E) of section 2151.414 of the
Revised Code exist and the child cannot be placed with one of the
child’s parents within a reasonable period of time or should not be
placed with either parent.
The child does not meet the requirements of a planned permanent
living arrangement pursuant to division (A)(6) of section 2151.353 of
the Revised Code and that prior to the dispositional hearing, no relative
or other interested person has filed or has been identified in a motion
for legal custody of the child.
The juvenile court included explicit findings under R.C. 2151.414(E)
and determined by clear and convincing evidence that “the child cannot be placed
with either [her mother or her father] within a reasonable time or should not be
placed with either [the mother or the father].” Specifically, the juvenile court found
as follows with respect to the child and Father:
Following the placement of the child outside the 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 mother and father
have failed continuously and repeatedly to substantially remedy the
conditions causing the child to be placed outside of the child’s home.
Father has a chemical dependency that is so severe that it makes him
unable to provide an adequate permanent home for the child at the
present time and, as anticipated, within one year after the Court holds
the hearing in this matter.
Father has neglected the child between the date of 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.
Father has demonstrated a lack of commitment towards the child by
failing to regularly support, visit, communicate with the child when
able to do so.
Father is unwilling to provide food, clothing, shelter, and other
necessities for the child or to prevent the child from suffering emotional
mental neglect, as evidenced by his unwillingness to successfully
complete a case plan so he can provide care for the child.
Our review reflects that the juvenile court’s findings were supported
by competent, credible evidence in the record. Because all the factors under
R.C. 2151.414(D)(2) apply, permanent custody was necessarily in the best interest of
the child, and the trial court was required to grant permanent custody to CCDCFS.
Father’s first assignment of error is overruled.
In his second assignment of error, Father argues that this matter
should have been continued due to COVID-19. “The grant or denial of a continuance
is a matter which is entrusted to the broad, sound discretion of the trial judge. An
appellate court must not reverse the denial of a continuance unless there has been
an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078
(1981). However, Father did not request a continuance of the hearing or raise
COVID-19 restrictions below. It is well settled those issues not raised in the trial
court may not be raised for the first time on appeal. State v. Goodwin, 8th Dist.
Cuyahoga No. 109352, 2020-Ohio-5187, ¶ 14, citing State v. Geiger, 10th Dist.
Franklin No. 15AP-1120, 2016-Ohio-7571, ¶ 12.
Where a party has failed to object to an issue they subsequently raise
on appeal, we may consider it if it rises to the level of plain error. Young v. Young,
10th Dist. Franklin No. 11AP-114, 2011-Ohio-5060, ¶ 12, citing Thomas v. Early,
10th Dist. Franklin No. 05AP-236, 2005-Ohio-4551, ¶16. In discussing plain error
in a civil case, the Supreme Court noted “reviewing courts must proceed with the
utmost caution, limiting the doctrine strictly to those extremely rare cases where
exceptional circumstances require its application to prevent a manifest miscarriage
of justice.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). As
the case had been active since 2016, and the motion for permanent custody was filed
well before COVID-19 became an issue, we do not find that a manifest injustice
occurred when the juvenile court did not continue this matter.
As Father did not request a continuance or raise the issue of
COVID-19 restrictions, we summarily overrule Father’s second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court, Juvenile Division, to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
LISA B. FORBES, J., CONCUR