[Cite as In re C.J., 2014-Ohio-2403.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 100532 and 100534




                                         IN RE: C.J.

                                        A Minor Child




                                        JUDGMENT:
                                         AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 11900672


        BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 5, 2014

                                              -i-
ATTORNEY FOR FATHER

Betty C. Farley
17316 Dorchester Drive
Cleveland, OH 44119

ATTORNEY FOR MOTHER

George Coghill
10211 Lakeshore Blvd.
Cleveland, OH 44108

ATTORNEYS FOR APPELLEE, STATE OF OHIO

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:
Rachel V. Eisenberg
Assistant Prosecuting Attorney
3955 Euclid Avenue
Cleveland, OH 44115

Jennifer McPaul
Assistant Prosecuting Attorney
C.C.D.C.F.S.
8111 Quincy Avenue
Cleveland, OH 44104

ATTORNEY FOR CHILD

Suzanne Piccoreli
255 Falmouth Drive
Rocky River, OH 44116



                                 -ii-
GUARDIAN AD LITEM FOR CHILD

Carla L. Golubovic
P.O. Box 29127
Parma, OH 44129
KENNETH A. ROCCO, J.:

       {¶1} In these consolidated appeals, appellants N.J. and T.W., respectively, natural

father and natural mother of the subject child, each challenge the decision of the

Cuyahoga County Court of Common Pleas, Juvenile Division, to terminate his or her

parental rights and to grant permanent custody of their minor child to the Cuyahoga

County Department of Children and Family Services (“the agency”).

       {¶2} Father presents three assignments of error.      He claims that the juvenile

court’s decision should be reversed because the evidence presented did not demonstrate

that permanent custody was in the child’s best interest. Father further claims that the

award should be reversed for both the agency’s failure to determine that the child could

be placed with her paternal aunt and the juvenile court’s failure to grant legal custody of

the child to her paternal aunt.

       {¶3} Mother presents two assignments of error. Like Father, she claims that the

juvenile court’s decision is unsupported by the evidence in the record.            Mother

additionally claims that the juvenile court abused its discretion in admitting certain

evidence at trial because it constituted hearsay.

       {¶4} Upon a review of the record, this court finds that none of appellants’ claims

have merit. Consequently, the juvenile court’s order is affirmed.

       {¶5} Mother gave birth to the child on January 22, 2005. The agency obtained

emergency custody of the child when she was five years old, and eventually placed the
child in the same foster home as her older female sibling. Subsequently, the child’s

sister was placed into a separate foster home.

         {¶6} On January 12, 2011, the agency filed a complaint in juvenile court seeking

temporary custody of the child. As amended, the complaint stated that the child was

dependent, the family had an “extensive history” with the agency, two older half-siblings

had mental health and behavioral problems, and Father neither visited nor supported the

child.

         {¶7} On April 29, 2011, the matter proceeded to a hearing. Mother admitted the

allegations of the amended complaint. At the conclusion of the hearing, the juvenile

court granted the agency’s motion and placed the child in the agency’s temporary custody.

 The court found that Mother was “to be involved in mental health evaluation and

services for child and for self.” The court also found that each parent “need[ed] stable

housing.” The court approved the agency’s case plan.

         {¶8} The agency thereafter applied to the juvenile court for an extension of the

child’s temporary custody; the juvenile court granted the extension. On September 10,

2012, the agency filed a motion to modify temporary custody to permanent custody. The

agency asserted that the child had been in temporary custody for over 12 months of a

consecutive 22 month period, as set forth in R.C. 2151.414(B)(1)(d).

         {¶9} Attached to the agency’s motion was the affidavit of Joyce Freeman, the

social worker of record for the case. Freeman averred that: (1) the case plan required

mother to “obtain emotional stability” and “appropriate parenting skills,” but that Mother
was not in compliance, having been charged in Euclid Municipal Court with child

endangering, (2) Mother failed on a consistent basis to appear at her time of private

visitation with the child, (3) Mother had failed to obtain an updated mental health

assessment and her “last assessments were obtained in 2008, wherein a history of

schizophrenia was referenced along with a diagnosis of personality disorder,” (4) none of

Mother’s four children was in her care and custody, and (5) Father was “a registered sex

offender with a conviction [for] Felony Gross Sexual Imposition from Cuyahoga County

in 2006.”

       {¶10} While the agency’s motion was pending, the juvenile court conducted

several pretrial hearings. On March 19, 2013, Father filed a motion requesting that the

court grant him “or in the alternative a relative * * * to be name[d] later, legal custody of

the child.”    In his supporting memorandum, Father asserted that he “will have

substantially complied and/or completed the case plan by time of trial” and that he had

“the ability to care for and support the child.”

       {¶11} On May 10, 2013, Father amended his motion for legal custody to name his

sister Luretha Talbert as the “alternate” relative. Father asserted in his memorandum in

support of his amended motion that Talbert had complied with the child’s guardian ad

litem’s (“GAL”) and with the agency’s “custody investigation[s] and addressed any

alleged concerns.”
       {¶12} On May 28, 2013, Talbert filed a “statement of understanding for legal

custody” pursuant to R.C. 2151.353(A) and R.C. 2151.42. Her signature had no attached

attestation.

       {¶13} On August 29, 2013, the juvenile court called the matter for trial. Neither

Father nor paternal aunt attended. The agency presented the testimony of the two social

workers who had been assigned to the child’s case. Mother also testified.

       {¶14} On September 17, 2013, the juvenile court issued a judgment entry that

granted the agency’s motion for permanent custody of the child. Both Father and Mother

have appealed from that judgment.

       {¶15} In App. No. 100532, Father presents three assignments of error as follows.

             I. The Cuyahoga County Department of Children and Family
       Services failed to show by clear and convincing evidence that permanent
       custody is in the minor child’s best interest.

       II. The Cuyahoga County Department of Children and Family Services failed to

comply with Ohio Revised Code § 2151.412(G) in that the child was not placed in the

legal custody of a suitable family member.

       III. The trial court’s failure to grant appellant’s motion for legal custody of the

child to a relative was not based on a preponderance of the evidence and therefore

constitutes an abuse of discretion.

{¶16} In App. No. 100534, Mother presents the following two assignments of error.
             I. The trial court’s decision to award permanent custody to CCDCFS was against

      the manifest weight of the evidence as it was not supported by clear and convincing

      evidence.

             II.   The trial court abused its discretion by erroneously admitting prejudicial

      hearsay testimony.

      {¶17} Both Father and Mother argue in their first assignments of error that the juvenile court’s

decision is unsupported in the record. This court disagrees.

             {¶18} In order to terminate parental rights and grant permanent custody to a county

      agency, the record must demonstrate by clear and convincing evidence the following: (1)

      the existence of one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (d);

      and, (2) permanent custody is in the best interest of the child. In re: S.H., 8th Dist.

      Cuyahoga Nos. 97992, 97993, and 97994, 2012-Ohio-4064, ¶ 27.                      “Clear and

      convincing evidence” is that quantum of evidence that instills in the trier of fact a firm

      belief or conviction as to the allegations sought to be established. In re Y.V., 8th Dist.

      Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13, citing Cross v. Ledford, 161 Ohio St. 469,

      477, 120 N.E.2d 118 (1954).

             {¶19} In determining the child’s best interest, the relevant factors include the

      following: (1) the interaction and interrelationship of the child with others; (2) the wishes

      of the child; (3) the custodial history of the child; (4) the child’s need for a legally secure

      placement and whether such a placement can be achieved without permanent custody;

      and, (5) whether any of the factors in divisions (E)(7) to (11) apply. The “best interest
determination” focuses on the child, not the parent. R.C. 2151.414(C); In re Awkal, 95

Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994). The discretion that the juvenile

court enjoys in deciding whether an order of permanent custody is in the best interest of a

child should be accorded the utmost respect, given the nature of the proceeding and the

impact the court’s decision will have on the lives of the parties concerned. Id. at 316.

       {¶20} In this case, the record demonstrated pursuant to R.C. 2151.414(B)(1)(d)

that the child had “been in the temporary custody of a public children services agency * *

* for twelve or more months of a consecutive twenty-two month period.” Neither Father

nor Mother can dispute that this requirement was met. The existence of that one factor

alone can support a finding that the agency should be granted permanent custody of the

child. In re S.G., 8th Dist. Cuyahoga No. 100441, 2014-Ohio-1088, ¶ 16, citing In re

William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996).

       {¶21} In addition, R.C. 2151.414(D)(2) provides:

              If all of the following apply, permanent custody is in the best interest

       of the child and the court shall commit the child to the permanent custody

       of a public children services agency or private child placing agency:

              (a) The court determines by clear and convincing evidence that one

       or more of the factors in division (E) of this section exist and the child

       cannot be placed with one of the child’s parents within a reasonable time or

       should not be placed with either parent.
                      (b) The child has been in an agency’s custody for two years or

             longer, and no longer qualifies for temporary custody pursuant to division

             (D) of section 2151.415 of the Revised Code.

                      (c) The child does not meet the requirements for a planned

             permanent living arrangement pursuant to division (A)(5) of section

             2151.353 of the Revised Code.

                      (d) 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.

      (Emphasis added.)

             {¶22} Putting aside the foregoing subsection (D)(2)(d) for purposes of the

      discussion of Father’s and Mother’s first assignments of error, R.C. 2151.414(E)

      provides:

             (E) In determining at a hearing * * * whether a child cannot be placed with either

      parent within a reasonable period of time or should not be placed with the parents, the

      court shall consider all relevant evidence. If the court determines, by clear and convincing

      evidence * * * that one or more of the following exist as to each of the child’s parents,

      the court shall enter a finding that the child cannot be placed with either parent within a

      reasonable time or should not be placed with either parent * * * .

      {¶23} In this case, the juvenile court determined not one, but four, subsections of R.C.

2151.414(E) applied, viz., (1), (2), (4) and (11). The court determined that (1) in spite of planning and
diligent efforts by the agency to assist the parents in remedying the problems that initially caused the

child to be placed outside the home, the parents had failed continuously and repeatedly to substantially

remedy the conditions causing the child to be placed outside the home, (2) Mother displayed a chronic

mental or emotional illness so severe that it made her unable to provide an adequate permanent home

for the child at the present time and, as anticipated, within one year after the trial; (4) the parents

demonstrated a lack of commitment toward the child by failing to regularly support, visit, or

communicate with the child when able to so or by other actions showing an unwillingness to provide an

adequate home for the child, and (11) Mother had her parental rights involuntarily terminated with

respect to a sibling of the child and had failed to provide clear and convincing evidence to prove that,

notwithstanding the prior termination, Mother could provide a legally secure permanent placement and

adequate care for the health, welfare, and safety of the child.

              {¶24} The juvenile court also found that the child’s best interest was served by

       granting permanent custody to the agency.         The juvenile court’s determinations and

       findings were supported by clear and convincing evidence.

              {¶25} As to Father, the record reflects that Father did not take any interest in the

       child until late 2012. He never called the agency to inquire about the child’s welfare.

       Moreover, he did not appear for his first supervised visit with the child, and could not

       interact with the child at his next visit because the child refused to come near him.

              {¶26} The record also reflects that, in the face of the child’s active aversion to him,

       Father responded inappropriately; he told child to stop being afraid of him because she

       was coming to live with him, which prompted only more fear in the child. Father did not
come to any visits with the child from February 2013 until June 2013. Father did not

have his own home; rather, he lived in his sister’s home. Father also had no verifiable

employment. Finally, Father did not find it necessary to attend the trial on the agency’s

motion for permanent custody.

      {¶27} As to Mother, the record reflects that Mother failed to undergo qualified

assessments of her mental and emotional health, although she had been diagnosed in 2008

and 2010 with paranoid schizophrenia and a personality disorder. One social worker

testified that she was removed from the case because Mother had threatened her with

physical harm. Mother’s testimony at trial was disjointed and bizarre.

      {¶28} The record also reflects that Mother was convicted of child endangering in

2012, Mother failed to utilize the services recommended by the social workers, and, at the

visitations with the child, she was chronically late and remained unfocused on the child.

Mother’s three older children had been permanently removed from her custody.

Mother’s claims that she could support the child because she had outside employment

were never substantiated. The child did not seem to have any affection for Mother;

indeed, Mother admitted that the child was usually “angry” during Mother’s visits.

      {¶29} The child’s GAL recommended that the agency’s motion be granted. The

record supports a conclusion that, in light of the child’s lack of a bond with either her

Father or her Mother and the child’s own psychological and emotional problems, the

child had an urgent need for a legally secure placement.
       {¶30} Based on the record, clear and convincing evidence supports the juvenile

court’s decision that granting permanent custody of the child to the agency was in her best

interest. Father’s and Mother’s first assignments of error, accordingly, are overruled.

       {¶31} Father asserts in his second and third assignments of error that neither the

agency nor the juvenile court complied with its statutory duties under R.C. 2151.412(G)

and R.C. 2151.353(A) to ensure that the child was placed in the legal custody of a

relative. According to Father, his sister Luretha Talbert was a relative who was able to

appropriately provide for the child. Father misreads the statutes.

       {¶32} R.C. 2151.412(G) governs case plans, not custody determinations. In re

M.W, 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444, ¶ 26. While the statute provides

that, in developing a case plan, the agency should consider that if parents are not suitable

custodians for their children then extended family members are next in priority, the

statute’s provisions are not mandatory. Id., citing In re Rollinson, 5th Dist. Stark Nos.

97CA00243 and 97CA00206, 1998 Ohio App. LEXIS 1984 (Apr. 27, 1998).                       The

statute provides in relevant part, moreover, that “[i]n the agency’s development of a case

plan and the court’s review of the case plan, the child’s health and safety shall be the

paramount concern.” Thus, other than parents, no preference exists for family members

in custody awards. In re M.W. at ¶ 27.

       {¶33} Similarly R.C. 2151.353(A)(3) provides that a juvenile court “may” make an

order of disposition to
              any other person who, prior to the dispositional hearing, files a

       motion requesting legal custody of the child or is identified as a proposed

       legal custodian in a * * * motion filed prior to the dispositional hearing by

       any party to the proceedings. * * *

       {¶34} In this case, the record reflects that the agency considered Talbert as a

possible placement alternative for the child. Upon investigation, however, the social

worker found that Talbert had been less than honest about her background; although

Talbert denied having any history of substance abuse, she had been charged with drug

trafficking. Talbert visited with the child only once, never called the agency to inquire

about the child’s welfare, and did not consider Father’s sexual offense conviction to be of

any concern. Like her brother, Talbert did not find it necessary to appear at the trial of

this case.

       {¶35} Under these circumstances, neither the agency nor the court was required to

give preferential consideration to Father’s suggestion that Talbert be granted legal

custody of the child.     In re P.T., 5th Dist. Tuscarawas No. 2012 AP 02 0009,

2012-Ohio-4034. Father’s second and third assignments of error, therefore, are also

overruled.

       {¶36} Mother argues in her second assignment of error that the juvenile court

acted improperly in overruling her objections to the social workers’ testimony about

Mother’s psychiatric history; the social workers testified that Mother had been diagnosed

with schizophrenia and a personality disorder.       Mother asserts the testimony was
inadmissible hearsay. Upon a review of the record, however, this court cannot find the

juvenile court erred.

       {¶37} The rules of evidence apply to dispositional proceedings pursuant to R.C.

2151.35(I). Nevertheless, a trial court has broad discretion in admitting or excluding

evidence, and absent an abuse of discretion and a showing of material prejudice, a trial

court’s ruling on the admissibility of evidence will be upheld. In re J.T., 8th Dist.

Cuyahoga Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 67, citing State v. Martin, 19 Ohio

St.3d 122, 129, 483 N.E.2d 1157 (1985).

       {¶38} The juvenile court judge is presumed to be able to disregard improper

testimony. In re J.T. at ¶ 70. The admission of hearsay evidence in termination of

parental rights cases, therefore, even if error, is not considered prejudicial unless it is

shown that the judge relied on improper evidence in making his decision. Id., citing In

re Lucas, 29 Ohio App.3d 165, 504 N.E.2d 472 (3d Dist.1985).

       {¶39} In this case, the evidence Mother challenges was already properly a part of

the record. The case plan filed with the juvenile court indicated that a court-ordered

psychological test in 2010 “revealed that [Mother] is an individual who possibly meets

the criteria for having paranoid schizophrenia.”      Thus, Mother’s mental status had

already been documented. In re J.T. at ¶ 71.

       {¶40} The social workers’ testimony, therefore, was designed to report Mother’s

obligations under the case plan that they oversaw and whether there was compliance. Id.

 In order to be “current,” Mother was required to undergo another psychological
assessment within two years of the institution of the case plan, but she failed to obtain an

approved assessment.

       {¶41} The record in this case does not establish that either the juvenile court erred

in allowing the social workers’ testimony about Mother’s previous diagnosis or that the

juvenile court relied upon hearsay in determining that a grant of permanent custody to the

agency was in the child’s best interest. Id. at ¶ 71-72. Consequently, Mother’s second

assignment of error is overruled.

       {¶42} The juvenile court’s judgment is affirmed.

       It is ordered that appellee recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court 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.



_________________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
