[Cite as In re S.C., 2015-Ohio-4766.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 102611




                                        IN RE: S.C., ET AL.

                                          Minor Children

                                         [Appeal by Mother]



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                             Case Nos. AD12917326 and AD12917329

        BEFORE: S. Gallagher, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: November 19, 2015
ATTORNEY FOR APPELLANT

Michael B. Telep
4438 Pearl Road
Cleveland, OH 44109


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Anthony R. Beery
Cuyahoga County Department of
  Children and Family Services
4261 Fulton Parkway
Cleveland, OH 44144


Also listed:

Attorney for Children

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

Guardian ad Litem

Daniel J. Bartos
Bartos & Bartos, L.P.A.
20220 Center Ridge Road
Suite 320
Rocky River, OH 44116
SEAN C. GALLAGHER, J.:

       {¶1} Appellant mother appeals from an order awarding permanent custody of two

of her children, S.C. and J.C., to the Cuyahoga County Department of Children and

Family Services (“CCDCFS”). Upon review, we affirm.

       {¶2} On October 16, 2012, CCDCFS filed a complaint for neglect and temporary

custody of S.C. and J.C. and their two older siblings because of mother’s alleged anger

management problem, mental health issues, and substance abuse problem, and father’s

criminal history.   Mother was represented by a public defender in the matter, and

discovery was conducted.

       {¶3} Following a hearing, the children were committed to the emergency

temporary custody of CCDCFS on November 7, 2012. The magistrate found reasonable

efforts were made to prevent removal of the children from the home, finding that “Mother

was referred for Family Preservation and for substance abuse assessment.           Mother

refused Family Preservation and did not complete the substance abuse assessment.”

       {¶4} The guardian ad litem for the children filed a report that detailed information

obtained from the children regarding mother’s substance abuse and her “whoopings” and

beatings of the children. Supplemental reports were filed through the course of the

proceedings that set forth further concerns pertaining to mother and the need to protect

the children.
       {¶5} A case plan was developed, and services were offered in an effort to achieve

reunification. The record reflects mother had appropriate housing for the children and

their basic physical needs were being met. However, among the concerns noted were

“excessive discipline” and that mother was not addressing her mental health issues. The

case plan was revisited during the course of proceedings.         In addition to mother’s

excessive manner of disciplining her children, mother’s substance abuse and mental

stability were added concerns. It was reported that mother smokes marijuana daily and

drinks alcohol. Services were afforded to mother to address the concerns and to reduce

the risk and safety concerns for the children.

       {¶6} After an adjudicatory hearing, the magistrate issued a decision adjudicating

the children neglected. The trial court independently reviewed the matter and found

clear and convincing evidence in the record supported the magistrate’s decision. The

trial court adjudicated the children to be neglected in a judgment entry issued on April 25,

2013. Among the evidence the trial court found to support the adjudication was mother’s

evasive behavior when the agency attempted to contact her regarding physical abuse

allegations; mother’s failure to follow through with family preservation services; reports

from the children of mother’s “whoopings,” some of which involved the use of belts,

extension cords, and blind turners; testimony from the social worker that mother

threatened to beat the children in front of the social worker; evidence that mother

sabotaged the safety plan by bringing the children inappropriate clothing and by cursing

at the children over the phone; testimony regarding mother’s behavior and anger at the
children; mother’s failure to engage in family preservation and mental health services

despite her admission to having posttraumatic stress disorder and evidence showing she

has anger management issues; evidence that another child was removed from mother’s

care due to allegations of physical abuse; and testimony regarding mother’s conviction for

a DUI.

         {¶7} Following a dispositional hearing, the magistrate issued a decision

committing the children to the temporary custody of CCDCFS, which was followed by

the judgment entry of the trial court on June 27, 2013. Mother did not file an appeal

from the adjudication of neglect and the award of temporary custody.

         {¶8}   Temporary custody was later extended for an additional period of six

months because there had not been substantial progress on the case plan by mother and

progress had not been made in alleviating the cause for removal of the children from the

home. The court found that mother had not benefitted from anger management and that

minimal progress had been made in family counseling. The permanency plan for the

children was reunification, and mother had regular visitation with the children.

         {¶9} On April 28, 2014, CCDCFS filed a motion to modify temporary custody to

permanent custody. CCDCFS acknowledged mother had completed substance abuse

treatment, but indicated mother continued to screen positive for cocaine and marijuana.

Further mother had completed a psychological evaluation, but had failed to address

identified issues, including anger management and mental health issues. Additionally,
CCDCFS stated that mother had participated in individual and family counseling, but

failed to benefit.

       {¶10} A report from the guardian ad litem recommended an award of permanent

custody to CCDCFS be granted for the children. The guardian ad litem later withdrew

because of a conflict with the children’s wishes, and a new guardian ad litem was

appointed. The new guardian ad litem filed a report recommending that permanent

custody of the children be granted to CCDCFS.

       {¶11} The case proceeded to trial where evidence and testimony was presented in

the matter. The trial court issued a judgment entry on February 9, 2014, terminating

mother’s parental rights and granting permanent custody to CCDCFS.

       {¶12} Mother appealed the trial court’s decision. Her sole assignment of error is

as follows:

       The trial court erred in adopting a magistrate’s decision, over objection,
       adjudicating the children as neglected children, when the state of Ohio
       failed to prove neglect under R.C. 2151.03(A) by clear and convincing
       evidence.

       {¶13} Initially, we recognize that mother’s sole argument focuses upon the trial

court’s adjudication of the children as neglected. CCDCFS included a motion to dismiss

within its appellee’s brief, claiming an appeal from the adjudication of neglect was not

filed within 30 days of the adjudication order.1 Mother did not file a reply brief.



       1
           We note that the better practice would have been to file a motion to dismiss after the notice
of appeal was filed and prior to briefing in this matter.
       {¶14} “An adjudication by a juvenile court that a child is ‘neglected’ or

‘dependent’ * * * followed by a disposition awarding temporary custody to a public

children services agency * * * constitutes a ‘final order’ within the meaning of R.C.

2505.02 and is appealable to the court of appeals * * *.” In re Murray, 52 Ohio St.3d

155, 556 N.E.2d 1169 (1990), syllabus. Furthermore, “an appeal of an adjudication

order of abuse, dependency, or neglect of a child and the award of temporary custody to a

children services agency pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of

the judgment entry pursuant to App.R. 4(A).”           In re H.F., 120 Ohio St.3d 499,

2008-Ohio-6810, 900 N.E.2d 607, ¶ 18. Although the parent still retains the right to

appeal any award of permanent custody to a children services agency, that appeal is

limited to issues that arose after the adjudication order. Id.

       {¶15} R.C. 2151.414(A)(1) provides that on a motion for permanent custody, the

court must conduct a hearing “to determine if it is in the best interest of the child to

permanently terminate parental rights and grant permanent custody to the agency that

filed the motion.” However, “[t]he adjudication that the child is an abused, neglected, or

dependent child and any dispositional order that has been issued in the case under section

2151.353 of the Revised Code pursuant to the adjudication shall not be readjudicated at

the hearing.”    R.C. 2151.414(A)(1).      Thus, the neglect finding was not subject to

readjudication at the time of the permanent custody hearing.

       {¶16} The record reflects that on April 25, 2013, the trial court adjudicated the

children to be neglected. Thereafter, the magistrate issued a decision on June 4, 2013,
committing the children to the temporary custody of CCDCFS, which was followed by

the judgment entry of the trial court on June 27, 2013. Mother did not file a timely

appeal from the adjudication and initial disposition of the children. The adjudication

cannot be challenged through an appeal from the final dispositional order.

       {¶17} Although the adjudication of neglect can no longer be challenged, we

recognize that appellant filed this appeal following the award of permanent custody.

Therefore, we shall review the trial court’s decision to award permanent custody to

CCDCFS.

       {¶18} “An appellate court will not reverse a juvenile court’s termination of

parental rights and award of permanent custody to an agency if the judgment is supported

by clear and convincing evidence.” In re N.B., 8th Dist. Cuyahoga No. 101390,

2015-Ohio-314, ¶ 48, citing In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440,

¶ 24. Pursuant to R.C. 2151.414(B), a court may grant permanent custody of a child to

an agency if, after a hearing, the court determines, by clear and convincing evidence, that

one of the four conditions set forth in R.C. 2151.414(B)(1)(a)-(d) applies, and that

permanent custody is in the best interest of the child. In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 23. “Clear and convincing evidence is that measure

or degree of proof which 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, 161 Ohio St.

469, 477, 120 N.E.2d 118 (1954).
       {¶19} As to each child in this case, the trial court determined, by clear and

convincing evidence, that the conditions under R.C. 2151.414(B)(1)(a), (b), and (d)

applied. Specifically, the court found that the children cannot be placed with either

parent within a reasonable time or should not be placed with the children’s parents; the

father has abandoned the children; and the children have been in the temporary custody of

CCDCFS for 12 or more months of a consecutive 22-month period. The court found that

the factors under R.C. 2151.414(E)(1), (4), (10), and (15) applied, and also considered

other relevant factors pursuant to R.C. 2151.414(E)(16).

       {¶20} In conducting a best-interests analysis under R.C. 2151.414(D), “[t]he court

must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors.

There is not one element that is given greater weight than the others pursuant to the

statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.

       {¶21} Here, the trial court considered the relevant factors pursuant to R.C.

2151.414(D), including the interaction and interrelationship of the children with their

parents, siblings, relatives, and foster parents; the wishes of the children; the custodial

history of the children; the children’s need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of permanent custody;

and the factors set forth under R.C. 2151.414(E)(7) to (11).

       {¶22} The trial court considered that the children had been in the custody of

CCDCFS for over two years; the children have had five placements and were currently in

an adoptive home; parenting was on mother’s case plan because mother was “whooping”
her children, and that despite mother finishing parenting classes, the quality of her

parenting showed no benefit and remained an ongoing concern; mother had not

successfully addressed her substance abuse problem; there were a number of concerns

from mother’s psychological assessments, including a threat to put bleach in the

children’s mouths for swearing;     mother had not remedied the conditions causing

removal; the children had expressed concerns about returning to their mother; the

guardian ad litem for the children recommended that permanent custody be granted to

CCDCFS; and relative placements had not been successful. The court indicated that

recently another relative had come forward seeking legal custody, but noted numerous

concerns about this relative and a lack of credibility.     The court determined that

CCDCFS had made reasonable efforts to prevent placement and/or make it possible for

the children to remain in or return to the home. The court also indicated that numerous

notations were made during trial “about the demeanor of the mother usually involving the

word ‘agitated’ or ‘concerning.’”

      {¶23} Upon our review of the record, we find the trial court’s determinations were

supported by clear and convincing evidence. Although mother may have had appropriate

housing for the children and their basic physical needs were being met, the evidence and

testimony in the matter demonstrated that she had not benefitted from the services she

was offered. Concerns over the quality of her parenting, substance abuse, and mental

health issues were substantiated by the record. Mother had not made substantial steps

toward remedying the conditions causing the removal of the children from the home.
After more than two years, a safe and stable home and permanency are clearly in the

children’s best interest in this case.   We affirm the trial court’s decision granting

permanent custody to CCDCFS and terminating mother’s parental rights.

      {¶24} 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 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

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
