In re R.D.W.

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19-907047, AD-19-907048, AD-19-907049, AD-19-907050

Valore & Gordillo L.L.P. and Matthew O. Williams, for appellant.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, PRESIDING JUDGE

{¶ 1} This appeal is from a permanent custody determination made by the Juvenile Division of the Cuyahoga County Court of Common Pleas, which awarded permanent custody to the Cuyahoga County Division of Children and Family Services ("Agency"). AW. ("Mother") appeals that court's decision and assigns two

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errors for our review. For the reasons set forth below, we overrule the assignments of error and affirm the judgment of the trial court.

I. Factual Background and Procedural History

A. Agency Complaints and Case Plan for the Parents

{¶ 2} Mother gave birth to four boys: R.D.W., Jo.W., Ja.W. and R.G. R.D.W.'s father is R.G. Sr. ("Father") who is also the alleged father of the two youngest boys: Ja.W. and R.G. but he has yet to establish paternity for those two children.

{¶ 3} J.W. is the father of Jo.W. J.W. has not participated in the actions below.

{¶ 4} When Mother was giving birth to her youngest son, ^[1] she tested positive for cocaine and marijuana.

{¶ 5} Because of the positive drug test, on June 5, 2019, the Agency filed four complaints for abuse and neglect related to each of the children. R.D.W. in Case No. AD-19-907047; Jo.W. in Case No. AD-19-907050; Ja.W. in Case No. AD-19-907049; and RG. in Case No. AD-19-907048. Along with the complaints, the Agency moved for temporary custody.

{¶ 6} At the time the Agency filed the complaints, Father had legal custody of R.D.W. in connection with a previous juvenile complaint^[2] because mother could

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not provide R.D.W. with stable housing. According to the complaint, Father was abusing marijuana and R.D.W. had over 40 days of unexcused absences from school. Further, Mother had a substance abuse problem with cocaine and marijuana and did not have stable housing because she had resided at four different addresses in the prior 18 months. Jo.W., like R.D.W., had multiple unexcused absences from school.

{¶ 7} The motion for temporary custody came for a hearing on June 6, 2019. Neither Mother nor Father appeared. The magistrate awarded emergency temporary custody to the Agency following the hearing.

{¶ 8} On August 8, 2019, Mother moved the court to grant temporary custody to Paris Cole, a family friend. On August 14, 2019, Mother and Father stipulated to the allegations of an amended complaint. Based on the stipulations, the magistrate adjudicated the children as neglected and the Agency developed a case plan.

{¶ 9} Initially, the children were placed with a maternal cousin. However, due to parental conflicts, the children were ultimately placed with Paris Cole, the family friend mentioned above.

{¶ 10} The case plan for Mother provided that she complete a parenting program as well as a drug and alcohol assessment and then attend, participate and successfully complete any recommended treatment.

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{¶ 11 The case plan for Father was similar to that of Mother. Father was required to attend and complete a parenting program, a drug and alcohol assessment and establish paternity for the two youngest boys.

{¶ 12} Mother completed a parenting program through Beech Brook on February 4, 2020. Father also completed a parenting program and then filed a motion for legal custody of R.D.W., Ja.W. and R.G. asserting that, because he had completed his parenting referral, he had substantially complied with the requirements of the case plan. Father never completed the drug or alcohol assessment let alone any treatment and has yet to establish paternity for the two youngest children.

{¶ 13} On February 18, 2020, the Agency moved the court to modify temporary custody to permanent custody. The affidavit attached to the motion avers that Mother completed a substance abuse assessment and was recommended to complete an intensive outpatient program. However, Mother failed to complete treatment. She subsequently was referred for another substance abuse assessment but failed to complete that treatment program, as well.

{¶ 14} The Agency, due to unruly behavior of the parents at visits which occurred in the presence of the children, amended the case plan and suspended visitation until each parent completed an anger management course.

{¶ 15} On March 1, 2021, Mother moved that the court award legal custody to Yvonne McCoy, a family friend.

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B. Disposition Hearing

{¶ 16} On June 14, 2021, the matter came for a dispositional hearing before the magistrate at which time Mother's motion for a continuance was denied. The magistrate proceeded to hear testimony and found, by clear and convincing evidence, that the children could not be placed with either Mother or Father.

{¶ 17} At the hearing, the Agency produced two witnesses.

{¶ 18} Jasmine Lynard testified that she was the social worker for the children. She testified that the Agency had temporary custody of the children since June 2019. She testified that Mother completed the parenting and anger management referrals but, other than assessments, Mother did not successfully complete any of the substance abuse treatment programs to which she was referred.

{¶ 19} For substance abuse, the Agency referred Mother to New Visions, Women's Recovery, Hitchcock House and Community Assessment and Treatment Services ("CATS"). Mother entered the intensive outpatient program at New Visions but "stopped going" and did not complete treatment. Women's Recovery likewise assessed Mother for an intensive outpatient program, and Mother stopped going without successfully completing that program. Mother then entered the inpatient program at Hitchcock House but voluntarily left before completing that program. Finally, Mother left the intensive inpatient treatment program at CATS just before the dispositional hearing.

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{¶ 20} Mother did not cooperate with drug-screen requests from the Agency. She did, however, provide urine specimens for testing for New Visions and CATS. Her urine specimens at CATS were positive for marijuana.

{¶ 21} After Lynard's testimony, the Agency called Dr. Sheila Ferguson to testify. Dr. Ferguson is the director of community-based services at the Fatima Center, which is operated by the Catholic Charities Corporation of Cleveland. This is the location where the Agency scheduled many of the parental visits with the children. Dr. Ferguson testified that Father and Mother clearly loved their children and that the family "always had a great time together." She also testified that Father was occasionally "abusive with Mom in terms of name calling and blaming her as the reason the kids were in care" and that these disparaging comments were made in front of the children. She also testified, however, that Mother and Father acted appropriately when they were interacting with the children.

{¶ 22} The magistrate found that Mother had a chemical dependency that is so severe that it makes her unable to provide an adequate permanent home for the children and that Father similarly suffers from a chemical dependency. Furthermore, while Mother began or completed some services, she did not complete an intensive outpatient or inpatient treatment program despite numerous referrals. Father only completed the referral for parenting and nothing else. Neither Mother nor Father reliably provided urine screens to the Agency. Accordingly, the magistrate granted the Agency's motion for permanent custody. The trial court

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overruled the parent's objections and adopted the magistrate's decision on July 1, 2021.

II. Standard of Review

{¶ 23} When proceeding via motion for permanent custody "the trial court must find by clear and convincing evidence: (1) the existence of any one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (d) and (2) that granting permanent custody to the agency is in the best interest of the child." In re M.S., 2015-Ohio-1847, 34 N.E.3d 420, ¶ 27 (8th Dist). Appellant's brief does not challenge any finding under R.C. 2151.414(B).

[T]he juvenile court may "[c]ommit the child to the permanent custody of a public children services agency," if the court determines (1) in accordance with R.C 2151.414(E) that the child cannot be placed with one of the child's parents within a reasonable time or should not be placed with either parent and (2) in accordance with R.C 2151.414(D)(1) that the permanent commitment is in the best interest of the child

In re L.S., 2021-Ohio-510, 168 N.E.3d 149, ¶ 42 (8th Dist.), quoting R.C. 2151.414(C).

{¶ 24} "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 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,...