[Cite as In re C.B., 2011-Ohio-5491.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 92775




                                         IN RE: C.B.

                                        A Minor Child




                              JUDGMENT:
                   REVERSED, VACATED, AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 06900501

        BEFORE: S. Gallagher, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: October 27, 2011
ATTORNEYS FOR APPELLANTS

Attorney for Mother

Betty C. Farley
17316 Dorchester Drive
Cleveland, OH 44119

Attorney for C.B.

R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
13770 Ontario Street
Cleveland, OH 44113

FOR APPELLEE

For Father

A.W., pro se
2720 Wooster Road
Apt. 4
Rocky River, OH 44116

Also listed:

Guardian Ad Litem for Child

Thomas Kozel
P.O. Box 534
North Olmsted, OH 44070-0534

Attorneys for Father

Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, OH 44121
Dale M. Hartman
2195 South Green Road
University Heights, OH 44121

Attorneys for Cuyahoga County
Department of Children and Family Services

William D. Mason
Cuyahoga County Prosecutor

BY: James M. Price
Assistant Prosecuting Attorney
C.C.D.C.F.S.
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113



SEAN C. GALLAGHER, J.:

       {¶ 1} This appeal is before this court on remand from the Ohio Supreme Court,

after it reversed our determination that the appeal should be dismissed for lack of a final

appealable order. In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398.

       {¶ 2} Appellant, Mother, appeals from the judgment of the Cuyahoga County

Court of Common Pleas, Juvenile Division, that granted legal custody of the child, C.B.,

to Father.1 The child’s guardian ad litem filed a cross-appeal on behalf of the child,

challenging the trial court’s denial of the motion for permanent custody of the Cuyahoga

County Department of Children and Family Services (“CCDCFS”) and the award of legal



       1
            In keeping with this court’s established policy of protecting the identity of juveniles, we
refer to the child and her family members only by initials or title.
custody to Father.2 For the reasons stated herein, we reverse the judgment of the trial

court, vacate the trial court’s order, and award permanent custody of the child to

CCDCFS.

      {¶ 3} The child was born on April 16, 2005.                  Mother and Father are her

biological parents.    They are not married and live separately.            On March 22, 2006,

CCDCFS filed a complaint for dependency and temporary custody.                    The child was

adjudicated dependent, and CCDCFS was granted temporary custody on June 7, 2006.3

After more than a year, CCDCFS filed a motion to modify temporary custody to

permanent custody on July 27, 2007. Mother stipulated to the motion, while Father

denied the allegations in the motion. The matter proceeded to a hearing, commencing in

October 2008, over two years after the child had been placed in temporary custody of

CCDCFS.4 Mother again stipulated to a finding of permanent custody for CCDCFS.

      {¶ 4} At the hearing, the child’s foster mother testified she had been the foster

parent for approximately two and one-half years without interruption. The child was

placed in her care at the age of nine months. The child is healthy with no developmental


      2
          Upon motion, separate counsel was appointed to represent the child on appeal.
      3
         “A juvenile court adjudication of abuse, neglect, or dependency is a
determination about the care and condition of a child and implicitly involves a
determination of the unsuitability of the child’s custodial and/or noncustodial
parents.” In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 24.
      4
          We note that Father objects to the reliance by appellants on testimony
elicited at the May 2008 mistrial and on events occurring subsequent to the notice
of appeal having been filed. This court has disregarded such matters. The facts
herein are from the transcripts of the hearing that commenced in October 2008.
delays, attends preschool, and is involved in several activities. There are two other

children in the foster family. The child is loved by the foster family and has bonded with

them. The foster mother is open to adopting the child.

       {¶ 5} The foster mother indicated that the child throws temper tantrums before

visits with Father, does not want to go, and states she is afraid of him. The foster mother

acknowledged that Father brings things for the child and that the child has stated she

loves her dad.

       {¶ 6} Loretha Knight, a social worker for CCDCFS, was assigned to the case in

January 2007.    She testified that the child was removed from her parents’ care on

December 23, 2005, after Mother dropped the child off at a police station. The child has

been continuously in the custody of CCDCFS since June 2006. Knight stated that the

child has adjusted well to foster care and has a very good bond with her foster family.

       {¶ 7} Though Father took issue with the child’s treatment at a hospital during her

foster care, the testimony reflected the child was treated for a bad diaper rash or vaginal

infection and there was no evidence or findings of any sexual abuse. Knight confirmed

an incident in which the child’s hair was cut by another child in the foster home.

However, she indicated that no violations were issued. She found that the child’s basic

needs were being provided for in a loving environment.

       {¶ 8} Knight stated that the child has a good bond with Father and that Father has

had both supervised and unsupervised visits with the child. Nevertheless, Knight stated

her belief that permanent custody was in the child’s best interest.
       {¶ 9} Knight indicated she was not satisfied with Father’s progress on the case

plan. The goals of his case plan were emotional stability, including the completion of a

psychological assessment with the court diagnostic clinic and obtaining appropriate

assistance; obtaining safe, stable, and appropriate housing; obtaining adequate financial

resources; and learning parenting skills, including completion of a parenting program.

Although Father’s apartment appeared to be a suitable environment, his former place of

residence was found unsuitable.          Further, Father failed to provide requested

documentation to establish stability. Father had six or seven jobs from 2006 until the

time of the hearing.       Knight was not able to verify whether Father had completed

parenting education programs.

       {¶ 10} There was also concern with regard to Father’s mental health status.

Knight was aware that Mother and Father had met in a mental health facility and that

Father had admitted to having been diagnosed with bipolar disorder in the past.

However, Father refused to discuss his mental health history and did not provide any

further information. Knight learned that Father had been hospitalized for psychiatric

reasons, he was diagnosed with certain psychiatric disorders, and follow-up treatment was

recommended. The discharge date was December 23, 2003. There is no evidence that

Father obtained follow-up care or treatment. Father also had a brother and a parent with

a psychiatric condition.
       {¶ 11} Father was referred for a psychological evaluation with the court diagnostic

clinic, but failed to attend.   While Father did complete an evaluation with another

provider, there were a number of inadequacies in the report provided.

       {¶ 12} It was conceded that Father consistently visits with the child and has missed

only two visits in three years. There were case notes indicating visits that went very well

and that Father’s visits went from two to three hours. There was no concerning behavior

on the part of Father noted with regard to visitations. However, Knight testified she had

concerns with Father’s displays of anger, outbursts, and odd behaviors with several

individuals.

       {¶ 13} Father’s aunt testified she had a strained relationship with him.        She

testified to concerning behavior of Father, including sleeping on the floor of his

grandmother’s apartment at night, eating food purchased for his grandmother, living in a

house he tore apart, including removing sinks and toilets, and having a dog that he always

kept in an attic.

       {¶ 14} Dennis Pinciotti, Ph.D., performed a psychological evaluation for Father.

Dr. Pinciotti admitted that he does not perform custody evaluations on a routine basis and

that they are not his specialty. His evaluation was based solely on information provided

by Father, and no collateral sources were consulted.           The doctor indicated on

cross-examination that he was under the impression from Father that reunification was in

progress and that the evaluation was not for a custody recommendation.
       {¶ 15} Dr. Pinciotti testified that Father’s assessment did not indicate any

significant concern. He stated that his experience with a prior diagnosis is “they’re like a

snapshot at the time unless it’s some significant diagnosis[.]” Although he had not seen

the hospitalization records at the time he wrote his report, he indicated his opinion would

not change. He found that Father had sound parenting ideas, wanted a more stable

financial situation, and was willing to take necessary steps to become a better parent.

His professional opinion was that Father “does not suffer from any preexisting or current

mental health conditions or present any concerns or obstacles that would be of concern or

impede his ability to parent his daughter. He also does not appear to be in need of any

mental health treatment or services at this time.”

       {¶ 16} Dr. Pinciotti recommended that unsupervised visitation should continue and

should be accelerated to facilitate reunification. He testified that “[Father] would like to

see himself as a residential parent after he has established a more satisfactory

environment for himself and his daughter. Although he would prefer his daughter not be

involved in the foster care system, he is satisfied with her current temporary placement

and is realistic about his ability to provide a satisfactory environment for her.”

       {¶ 17} Father called witnesses to verify that he is employed. Several witnesses

testified to Father’s visits with the child. Father provided evidence of a month-to-month

lease agreement for his housing and a copy of his employee ID badge. He also presented

evidence that he had completed a parenting class.
       {¶ 18} The child’s guardian ad litem recommended permanent custody to

CCDCFS. He found that the child was very comfortable in her foster home and was

informed by the foster mother that she was willing to adopt the child if she became

available for adoption. He also found that the child seemed comfortable with Father, that

their visits were appropriate, and that Father’s apartment appeared suitable.

       {¶ 19} However, the guardian ad litem was concerned that over two years had

passed since the child’s placement, the mother had stipulated to permanent custody, he

did not believe the child could be reunified with Father now or in the foreseeable future,

and he felt the child deserved to be in a stable home. He found that Father was not

willing to discuss his prior medical records and had not shown he received the

recommended follow-up treatment.        He also indicated the mental-health evaluation

obtained by Father was based purely on self-reporting of Father, the doctor had not been

provided with Father’s prior medical documentation, and no collateral sources were

consulted. Further, Father never attended his court-ordered evaluation and failed to fully

comply with the case plan. There were also reports of bizarre behavior on the part of

Father.

       {¶ 20} On February 1, 2009, the juvenile court denied CCDCFS’s motion for

permanent custody, ordered CCDCFS’s temporary custody to terminate, and granted legal

custody to Father. 5   The court further ordered that the child be committed to the


       5
          In relevant part, R.C. 2151.353(A)(3) allows the court to make the
following order of disposition for an abused, neglected, or dependent child: “(3)
Award legal custody of the child to either parent or to any other person who, prior to
protective supervision of CCDCFS so that progressive in-home and overnight visitation

with Father could be implemented. The court continued the matter to February 27, 2009,

for a custody review hearing.

      {¶ 21} Mother filed a notice of appeal on February 5, 2009. The child’s guardian

ad litem timely filed a cross-appeal on March 9, 2009, and also requested the appointment

of appellate counsel for the child. This court appointed appellate counsel for the child.

We also appointed counsel for Father. The lower court proceedings were stayed.

      {¶ 22} After appellate briefs were filed, this court dismissed the case for a lack of a

final appealable order. That ruling was reversed by the Ohio Supreme Court, and the

cause was remanded to this court for further proceedings. In re C.B., 129 Ohio St.3d

231, at ¶ 19. The matter, which has been fully briefed, is now before us for review.

      {¶ 23} Initially, we address jurisdictional and standing issues that have been raised.

 Pursuant to In re C.B., at ¶ 15, “when a trial court denies a children-services agency’s

motion to modify temporary custody to permanent custody, terminates the placement of

temporary custody with the agency, and awards legal custody to a parent, the order is final

and appealable under R.C. 2505.02.” Thus, we have jurisdiction to consider the appeal.

      {¶ 24} However, Father challenges Mother’s standing to appeal. CCDCFS did

not appeal the trial court’s order denying permanent custody and terminating the child’s




the dispositional hearing, files a motion requesting legal custody of the child * * *.”
placement in its temporary custody. Mother, who stipulated to an award of permanent

custody to CCDCFS, made no concession to an award of legal custody to Father.6

       {¶ 25} The child’s natural parents are parties to the proceedings. R.C. 2151.352;

Juv.R. 2(Y).       “An appealing party may complain of an error committed against a

nonappealing party when the error is prejudicial to the rights of the appellant.” In re

Smith (1991), 77 Ohio App.3d 1, 13, 601 N.E.2d 45. As the trial court’s order failed to

award permanency for the child and granted legal custody to Father, Mother’s rights were

clearly impacted. Thus, Mother has standing to challenge whether the decision was

proper.

       {¶ 26} The child’s guardian ad litem filed a cross-appeal on behalf of the child,

and appellate counsel was appointed for the child.7 Pursuant to R.C. 2151.352 “a child

who is the subject of a juvenile court proceeding to terminate parental rights is a party to

that proceeding and, therefore, is entitled to independent counsel in certain

circumstances.” In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110,

syllabus.

       {¶ 27} The assignments of error raised by Mother and the child challenge the trial

court’s ruling as being an abuse of discretion and against the manifest weight of the

evidence. We find merit to the arguments raised.

       6
            We note that Father never formally requested legal custody of the child.
       7
          Though the notice of cross-appeal was filed by the guardian ad litem, he
contemporaneously filed a motion for the appointment of counsel to represent the
child in the cross-appeal.
         {¶ 28} It is well established that the right to parent one’s children is a fundamental

right.    In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.

Nevertheless, a government agency has broad authority to intervene when necessary for

the child’s welfare or in the interests of public safety. Id. at ¶ 28-29, citing R.C.

2151.01(A).      In accordance with R.C. 2151.414, a trial court may grant permanent

custody of a child to an agency if the court determines, by clear and convincing evidence,

that one of the factors enumerated in R.C. 2151.414(B)(1)(a)-(d) applies and that an

award of permanent custody is in the child’s best interest. Id. at ¶ 23. “Clear and

convincing evidence” is evidence that “will produce in the mind of the trier of facts a firm

belief or conviction as to the allegations sought to be established.” Cross v. Ledford

(1954), 161 Ohio St. 469, 477, 364, 120 N.E.2d 118.

         {¶ 29} The factors under R.C. 2151.414(B)(1) include the following: (a) the child

cannot be placed with either parent within a reasonable period of time or should not be

placed with either parent; (b) the child is abandoned; (c) the child is orphaned and no

relatives are able to take permanent custody of the child; or (d) the child has been in the

temporary custody of one or more public or private children services agencies for 12 or

more months of a consecutive 22-month period.

         {¶ 30} Here, the record supports the trial court’s determination that the child had

been in the temporary custody of CCDCFS for 12 or more months of a consecutive

22-month period. In fact, the child had been in continuous custody for over two years at

the time the hearing was held. In this regard, we echo the concern expressed by Justice
McGee Brown: “In the event that a court removes a child from a parent because of

abuse or neglect, the parent faces court orders to remedy the conditions causing the

child’s removal. If a parent fails within 12 months to remedy these problems or to make

substantial progress toward their remediation, the child is entitled to a permanency

determination.    R.C. 2151.413(D)(1) and 2151.414(A)(1), (A)(2), and (E)(1).        It is

paramount that juvenile courts stick to these time parameters for the best interest of the

child.” In re C.B., 129 Ohio St.3d 231, at ¶ 21, McGee Brown, J., concurring. We

caution juvenile courts that they must avoid delay in custody determinations and are to

expeditiously move to a speedy resolution in abuse, neglect, or dependency cases. See

id. at ¶ 23-24.

       {¶ 31} Having satisfied R.C. 2151.414(B)(1)(d), the only other finding the court

was required to make was that an award of permanent custody is in the best interest of the

child. See In re D.A., Cuyahoga App. No. 95188, 2010-Ohio-5618.

       {¶ 32} R.C. 2151.414(D) sets forth the relevant factors a court must consider in

determining the best interest of the child. These factors include, but are not limited to

the following: (1) the child’s interaction and interrelationship with the child’s parents,

siblings, relatives, and foster caregivers; (2) the child’s wishes expressed directly or

through a guardian ad litem; (3) the child’s custodial history; (4) the child’s need for

legally secure permanent placement and if that type of placement can be obtained without

granting permanent custody to the agency; and (5) whether any factors listed in R.C.

2151.414(E)(7)-(11) apply. See R.C. 2151.414(D)(1)-(5).
      {¶ 33} “In Ohio, it is axiomatic that the best interest determination focuses on the

child, not the parent. R.C. 2151.414(C) expressly prohibits the court from considering

the effect the granting of permanent custody to a children services agency would have

upon the parents.” In re D.A., 2010-Ohio-5618, at ¶ 51. In this case, the trial court

found that there was a lack of clear and convincing evidence that an award of permanent

custody was in the best interest of the child. Much of the court’s opinion was focused

upon Father, who the court found had not abandoned the child and had demonstrated a

commitment toward the child. The court further found there was insufficient evidence to

support the allegations that Father had a chronic mental or emotional illness that made

him unable to provide an adequate or permanent home for the child.              The court

determined that legal custody should be awarded to Father. We find that the trial court

abused its discretion and that the trial court’s determination was against the manifest

weight of the evidence.

      {¶ 34} The record reflects that the child has a good relationship with both her

foster family and Father.    However, “the mere existence of a good relationship is

insufficient. Overall, we are concerned with the best interest of the child, not the mere

existence of a relationship.” (Citations and quotation omitted.) Id. at ¶ 61. While the

child’s visits with Father were appropriate, there was evidence that the child often throws

tantrums beforehand or does not want to go. Further, the child has bonded with her

foster family. She has been continuously in the same foster home for several years, since

she was a baby, and the foster mother has expressed a willingness to adopt the child.
         {¶ 35} The guardian ad litem recommended permanent custody of the young child

to CCDCFS. He indicated that the case plan has not been complied with, the child has

been in the custody of CCDCFS for over two years, there is concern over Father’s mental

health history, and the child has bonded with her foster family and deserves a stable

home.

         {¶ 36} We recognize that Father was not the cause for removal of the child. The

record reflects that Father and the child love each other and have a good relationship.

Father’s visitation with the child has been consistent and appropriate. Further, Father

obtained suitable month-to-month housing, was employed, and had taken a parenting

class.

         {¶ 37} Although Father has shown a strong desire to parent the child and has made

efforts to prepare for such a role, our primary inquiry remains the best interest and

welfare of the child. As Ohio courts have recognized, “‘[P]arents who are suitable

persons have a “paramount” right to the custody of their minor children.’ In re Murray

(1990), 52 Ohio St.3d 155, 157 (citations omitted). ‘The fundamental interest of parents

is not absolute, however.’ In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, at ¶ 11. The

‘extreme disposition’ of permanently terminating a parent’s rights with respect to a child

‘is nevertheless expressly sanctioned * * * when it is necessary for the “welfare” of the

child.’ In re Cunningham (1979), 59 Ohio St.2d 100, 105. ‘[T]he fundamental or

primary inquiry at the dispositional phase of these juvenile proceedings is not whether the

parents of a previously adjudicated “dependent” child are either fit or unfit,’ rather, it is
‘the best interests and welfare of that child [that] are of paramount importance.’ Id. at

106 (emphasis sic).”      In re S.P., Lake App. Nos. 2011-L-038 and 2011-L-039,

2011-Ohio-4696, ¶ 35.

       {¶ 38} The record here reflects that Father did not comply with the case plan and

exhibited a lack of stability. There was testimony showing a history of unstable housing

and prior unsatisfactory conditions. He also had numerous employers over the past

several years.    Additionally, he failed to attend the court-ordered psychological

evaluation, despite his mental condition having been in question.      There was evidence

that Father and Mother met in a mental health facility, and that Father was hospitalized

for psychiatric reasons and was diagnosed with certain psychiatric conditions. Although

Father argues his hospitalization was years ago, he was unwilling to discuss his

mental-health history, there was no evidence that he obtained the recommended follow-up

treatment, and he has exhibited other concerning behavior. While Father obtained an

outside report, the evaluation was based purely on self-reporting by Father, the doctor had

not been provided with pertinent information regarding Father’s mental-health and family

history, and certain tests were not performed. The evidence reflects that the goals of the

case plan were not substantially adhered to or met.

       {¶ 39} As was the case in In re D.A., although the court orders and case plan were

not complied with, the trial court still granted Father legal custody, further delaying

permanence for the child. “A permanent, loving family and a safe and stable home are

clearly in [the child’s] best interest. Although the trial court’s repeated attempts to place
child with father may have been well-intentioned, it placed the father’s interest ahead of

the child’s, in violation of the Revised Code and the relevant case law[.]” In re D.A.,

2010-Ohio-5618, at ¶ 62.

       {¶ 40} Regrettably, despite Father’s love and devotion to the child, an award of

legal custody is not in her best interest or welfare.        As this court has repeatedly

recognized, “‘[a] child’s best interests require permanency and a safe and secure

environment.’” In re S.W.E., Cuyahoga App. No. 91057, 2008-Ohio-4234, ¶ 11, quoting

In re Holyak (July 12, 2001), Cuyahoga App. No. 78890.

       {¶ 41} Upon    our review, we find that a multitude of factors under

R.C. 2151.414(D) were established by clear and convincing evidence. The trial court

abused its discretion in finding it was not in the child’s best interest to award permanent

custody to CCDCFS and in awarding Father legal custody. We further find that its

decision to deny the motion for permanent custody of CCDCFS was against the manifest

weight of the evidence.

       {¶ 42} Accordingly, the trial court’s judgment is reversed, the February 1, 2009

order is vacated, and permanent custody of the child is granted to CCDCFS. The case is

remanded to the trial court for proceedings consistent with this opinion.

       It is ordered that appellants recover from appellees 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.



SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
