[Cite as In re C.P., 2014-Ohio-117.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99905



                                       IN RE: C.P., JR.
                                        A Minor Child

                                   [Appeal by V.W., Mother ]



                                        JUDGMENT:
                                         AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 11901412


        BEFORE:           Jones, P.J., Blackmon, J., and McCormack, J.

        RELEASED AND JOURNALIZED: January 16, 2014
ATTORNEY FOR APPELLANT

Christopher Lenahan
13001 Athens Avenue, #200
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEES

For C.C.D.C.F.S.

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mark Adelstein
Assistant County Prosecutor
9300 Quincy Avenue
Cleveland, Ohio 44106

Guardian Ad Litem for Child

Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070

Guardian Ad Litem for Mother

Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129

For C.P., Father

Michael S. Weiss
602 Rockefeller Building
614 Superior Avenue
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

        {¶1} Mother-appellant seeks review of the trial court’s April 2013 judgment

terminating her parental rights and granting appellee, the Cuyahoga County Department

of Children and Family Services (“CCDCFS” or the “Agency”), permanent custody of her

minor son, C.P., Jr. (“C.P.”). For the reasons that follow, we affirm.

                                       I.   Procedural History

        {¶2} C.P. was born on January 24, 2011. Two days later, on January 26, the

Agency filed a complaint alleging C.P. to be dependent and requesting permanent custody

of him.     The complaint alleged in part that Mother had seven other children who had

been removed from her care and adjudicated neglected and dependent.                    The complaint

further alleged that of those other children, Mother’s parental rights had been terminated

as to four of them.1 CCDCFS sought pre-dispositional temporary custody of C.P.

        {¶3} Mother filed a motion seeking to grant legal custody of C.P. to a relative

and a motion for pre-dispositional temporary emergency custody.                   After a hearing on

January 28, 2011, the trial court denied the Agency’s motion for pre-dispositional

temporary custody of C.P., and granted Mother’s motion for pre-dispositional emergency

temporary custody; temporary custody of C.P. was granted to a paternal aunt.

        {¶4} On January 31, 2011, the Agency filed a motion to set aside the judgment

granting Mother’s pre-dispositional emergency temporary custody motion and a motion to


         The parental rights of C.P.’s Father were also terminated; he has not appealed. Father is also
        1


father to three of C.P.’s siblings, and his parental rights were terminated as to those children as well.
stay execution of the judgment. On February 11, 2011, the trial court granted the motion

to set aside the judgment, terminating the paternal aunt’s temporary emergency custody of

C.P., and granting pre-dispositional temporary custody of him to the Agency.

      {¶5} In July 2011, C.P. was adjudicated to be a dependent child and committed to

the temporary custody of CCDCFS. In April 2012, the Agency filed a motion to modify

temporary custody to permanent custody.

      {¶6} Because of Mother’s and Father’s involuntary terminations of parental rights

relative to their other children, the Agency filed a motion for determination that

reasonable efforts for reunification were not required.     The trial court granted the

motion.

      {¶7} Hearings were held in February 2013 on CCDCFS’s motion for permanent

custody. In April 2013, the trial court issued its judgment terminating Mother’s and

Father’s parental rights and granting permanent custody of C.P. to CCDCFS for the

purpose of adoption.




                                       II. Facts

The Agency’s Case

      {¶8} C.P. was born on January 24, 2011. C.P. was diagnosed with cerebral palsy,

developmental disorders, and dysphagia, a condition that makes it difficult for him to

swallow.
        {¶9} At the time of C.P.’s birth, Mother had seven other children and her parental

rights had been terminated as to four of them.2 Both Mother and Father are hearing

impaired, and there is some evidence in the record that Mother has visual impairments as

well.

        {¶10} Mother had a history with CCDCFS.                Because of Mother’s prior

involvement with the Agency, the Agency sought, and the trial court granted, a

determination that it was not required to use reasonable efforts to reunify C.P. and

Mother.     The relevant background of Mother’s prior involvement with the Agency is as

follows.

        {¶11} In 2007, with Mother’s children still in her care, the Agency referred Mother

for services to address concerns regarding getting her children to school and general

neglect issues around her home.          The social worker on the case at the time, Jamessa

Motley, testified that Mother did not benefit from the services provided to her.       For

example, Motley was concerned that Mother was not adequately providing food for the

children. After getting food for Mother on one occasion, Motley saw the food in the

cat’s bowl.

        {¶12} Another example of general neglect that Motley testified to concerned the

disconnection of gas services to Mother’s home because of default in payment.          The

Agency worked to get the gas turned back on, but according to Motley, Mother was not

very cooperative in working with her to make it happen.


        The other three children did not reside with her.
        2
      {¶13} In 2008, a domestic violence incident occurred between Mother and Father,

during which Mother, who was pregnant at the time, threatened to stab herself in the

stomach.    Because of the domestic violence incident, the Agency believed Father posed

a risk to the children and told Mother that she needed to either live with her children

without Father, or live alone with Father. Mother chose to live with Father, and her

children were removed from her care.

      {¶14} Thus, in 2008, in addition to the concerns identified in 2007, the Agency

also had concerns relative to domestic violence, Mother’s mental health, and Mother’s

use of alcohol. CCDCFS offered services to Mother to help her address these areas of

concern.    According to Motley, Mother did not benefit from the services.   For example,

although Mother completed a parenting class, she made minimal progress.       Mother took

another parenting class in 2009, but, again, according to Motley, she made minimal

progress. Mother attended a third parenting class in late 2009.

      {¶15} Also in 2009, the Agency referred Mother for a domestic violence program.

 Motley testified that Mother failed to complete the program, and was referred for

another domestic violence program for the deaf, which she completed.          However, in

2010, Mother and Father were involved in another violent altercation.

      {¶16} During the course of this custody proceeding, Mother had supervised visits

with C.P.    The visits initially occurred at maternal grandmother’s house.    The foster

mother would provide C.P.’s food for the visit because C.P. was on a special diet due to

his difficulty swallowing.    The need for Mother to adhere to the special diet was
explained to her numerous times through the use of interpreters. During one of the

visitations, Mother fed C.P. crackers, which he was not supposed to have because they

posed a choking risk.

       {¶17} According to Motley, Mother was in denial about C.P.’s condition and the

need for the special diet.   Mother indicated to her that C.P. appeared to be healthy and,

therefore, she did not see the need for the special diet.            Kim Kuczma, Motley’s

supervisor who had also been involved in the case since 2007, testified that there were

always ongoing concerns with Mother.         Kuczma further testified that Mother did not

seem to understand the importance of maintaining C.P. on the special diet.

       {¶18} Because of that incident, the supervised visitations were moved to the

Agency. Motley testified that during the visits, Mother would change C.P.’s diaper and

feed him a little, and after that would “kind of [sit] back off to the side.”

       {¶19} Motley was removed from the case in November 2012.             The Agency social

worker who took over the case, Matthew Goodwin, had previously occasionally filled in

for Motley and was familiar with the case.

       {¶20} Goodwin testified that at his first supervised visit between Mother and C.P.,

Mother changed C.P.’s diaper and tried to feed him, but then “mostly sat back and

observed.”    According to Goodwin, Mother interacted with C.P. for approximately

25-30 minutes of the two-hour visit.

       {¶21} At the next supervised visit, an interpreter was present, and through the

interpreter, Goodwin communicated with Mother about C.P.’s condition. Goodwin was
of the opinion that Mother did not have much understanding about C.P.’s condition.

Goodwin testified that he saw some level of bonding between Mother and C.P., and that

Mother would bring gifts for C.P. and take his picture.

Mother’s Case

       {¶22} In addition to parenting and domestic violence programs, Mother counseled

with Judy Gogolen, a therapist who Mother had been seeing for years prior to her

involvement with the Agency, and Dr. Jaina Amin, a psychiatrist. Both testified at trial

on Mother’s behalf, and established that Mother suffered from major depression and had

been prescribed anti-depressants and sleep aid medication.   They both testified that, in

their opinions, Mother should have legal custody of C.P.

       {¶23} The record demonstrates that the relationship between Gogolen (Mother’s

therapist) and Motley (the initial county social worker) was strained.     According to

Gogolen, Motley would call her seeking negative information about Mother, which she

refused to provide.

       {¶24} Gogolen testified about Mother’s distrusting relationship with Motley and

Mother’s reporting to her that no interpreter was present at many of her meetings with

Motley. Gogolen also testified that she herself did not agree with Motley’s opinions of

Mother.

       {¶25} Gogolen testified that Mother regularly attended sessions with her and that

she believed that Mother had made progress over the years.     Gogolen further testified

that Mother expressed concerns about C.P. to her and was interested in learning more
about his condition.   According to Gogolen, Mother never told her that Father had been

domestically violent with her.

      {¶26} Gogolen admitted, however, that, against her advice, Mother chose to stay in

her relationship with Father.    Gogolen also admitted that she advised Mother, that

although the decision was hers, it was best for her to continue taking her medication,

because as Gogolen noted in her May 2012 notes, Mother was “still very, very

depressed.”   Gogolen was concerned that Mother’s depression could “pop up again

when not expected.”

      {¶27} Dr. Amin testified that Mother was “medication compliant,” but that Mother

stopped taking her medications when she felt that she no longer needed them. Thus, Dr.

Amin took Mother off of her medications in January 2012, not because the doctor felt

Mother did not need them, but because Mother felt she did not need them.

      {¶28} Brian Freeman, Mother’s substance abuse counselor, also testified on

Mother’s behalf.   Freeman specialized in providing addiction recovery services for the

deaf, and began working with Mother in May 2010.

      {¶29} Originally, Mother had been diagnosed with alcohol abuse. However, in

the summer of 2010, that diagnosis was changed to alcohol dependent because it was

discovered that Mother consumed alcohol on a daily basis.

      {¶30} Freeman initially referred Mother to a nighttime Alcoholics Anonymous

(“AA”) meeting at a West 14th Street location in Cleveland; that particular meeting time

and place had accommodations for the hearing impaired.      Mother did not consistently
attend, however, because she was concerned about her safety in the area and her vision

problems made it difficult for her to get around at night.    Mother opted to attend regular

church services instead.

       {¶31} Although Freeman testified that he believed that AA meetings were “very,

very important,” he also testified that he believed the church services were beneficial to

Mother; Motley, the social worker, did not believe the church services were helping her,

or at least not as the sole measure of addressing her substance abuse issues.

C.P.’s Guardian Ad Litem

       {¶32} C.P.’s guardian ad litem recommended to the court that granting permanent

custody of him to the Agency would be in his best interest.

                                  III.   Law and Analysis

       {¶33} Mother raises the following error for our review:       “The trial court’s order

granting permanent custody to the CCDCFS was not based upon sufficient clear and

convincing evidence.”

       {¶34} 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 requires

the court to find, by clear and convincing evidence, that:    (1) granting permanent custody

of the child to the agency is in the best interest of the child under R.C. 2151.414(D), and

(2) either the child (a) cannot be placed with either parent within a reasonable period of

time or should not be placed with either parent if any one of the factors in R.C.

2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are able to
take permanent custody of the child; or (d) 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. R.C. 2151.414(B)(1); see also In re J.M-R., 8th Dist. Cuyahoga No.

98902, 2013-Ohio-1560, ¶ 26.

       {¶35} Clear and convincing evidence is defined as:

       that measure or degree of proof which is more than a mere “preponderance
       of the evidence” but not to the extent of such certainty required “beyond a
       reasonable doubt” in criminal cases, and which will produce in the mind of
       the trier of facts a firm belief or conviction as to the facts sought to be
       established.

In re Awkal, 95 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist.1994), fn. 2, citing

Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979

(1987).

       {¶36} Therefore, 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. at id.

       {¶37} The weight of the evidence concerns “‘the inclination of the greater amount

of credible evidence, offered at trial, to support one side of the issue rather than the other

[and] indicates clearly to the [factfinder] that the party having the burden of proof will be

entitled to their verdict.’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997).
       {¶38} When conducting a manifest weight review, the reviewing court must weigh

the evidence and all reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way

and created such a manifest miscarriage of justice that the judgment must be reversed and

a new trial ordered. Eastley at ¶ 20, citing Tewarson v. Simon, 141 Ohio App.3d 103,

115, 750 N.E.2d 176 (9th Dist.2001).

       {¶39} Although we consider credibility in a manifest weight review, we are

mindful that the knowledge a trial court gains through observing the witnesses and the

parties in a custody proceeding cannot be conveyed to a reviewing court by a printed

record.   In re A.D., 8th Dist. Cuyahoga No. 85648, 2005-Ohio-5441, ¶ 6. Therefore,

the discretion that a trial court enjoys in custody matters should be afforded the utmost

respect, given the nature of the proceeding and the impact the court’s determination will

have on the lives of the parties concerned. Id.

       {¶40} Mother contends that the trial court’s decision was not supported by clear

and convincing evidence because (1) a “significant aspect of the case involves [her]

deafness and vision loss and * * * the Agency’s failure to accommodate this condition,”

(2) she attended parenting and domestic violence programs, (3) she visited with C.P. and

bonded with him, and (4) she was compliant with her medication schedule, and only

stopped it because she “developed other mechanisms for coping with her depression.”

       {¶41} It is true that Mother’s hearing impairment posed difficulties in this case.

But we do not find that CCDCFS failed to accommodate Mother in this regard. The
record establishes that Mother was insistent on continuing her treatment with

professionals who had helped her in the past — her substance abuse counselor, Brian

Freeman; her psychiatrist, Dr. Amin; and her therapist, Judy Gogolen — and was resistant

to help from the Agency.

       {¶42} Freeman attempted to get Mother involved in an AA program for the

hearing impaired, but due to the time and location, Mother did not attend. Rather,

Mother substituted going to church services for the AA meetings, an action Freeman

sanctioned.

       {¶43} Gogolen suggested to Mother that she continue with her medications

because she was “still very, very depressed,” and Gogolen was concerned that Mother’s

depression could be manifested when not expected. Despite Gogolen’s urging, Mother

decided she no longer needed her medications and Dr. Amin stopped prescribing them for

that reason.   On this record, we are not persuaded by Mother’s contention that she was

compliant with her medication schedule, and only stopped it because she “developed

other mechanisms for coping with her depression.”

       {¶44} The record supports the trial court’s finding that, “[t]o put it bluntly, the

defense witnesses did nothing to persuade [the] Court that [Mother is] capable of

providing a safe, stable, and sober home for [the] child.    I[n] fact, the defense witnesses

strengthened the state’s case that permanent custody is in the child’s best interest.”

       {¶45} Mother did attend parenting programs, but the record demonstrates that she

did not benefit from them to the point where she remedied the conditions that led to the
removal of C.P. in the first place.       Likewise, she attended domestic violence programs,

but had a violent altercation with Father after she had completed the first program.

Also, in the past, when she was faced with the choice of living alone with Father, or

living with her children, Mother picked living with Father.

       {¶46} Moreover, other prevalent issues besides Mother’s hearing impairment were

present in this case.        The other issues included:       (1) the involuntary termination of

Mother’s parental rights with respect to four of her other children and the fact that none

of her eight children lived with her; and (2) Mother’s denial about C.P.’s medical

condition and, therefore, non-compliance with his special dietary needs.

       {¶47} The trial court considered the factors under R.C. 2151.414(D)(1) in

determining that it was in C.P.’s best interest that CCDCFS be granted permanent custody

of him, and found that subsection (d) applied, that is, that C.P. had been in the Agency’s

temporary custody for 12 or more months of a consecutive 22-month period.3



       3
        Those factors are:

         (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, as expressed directly by the child or through the child’s guardian
ad litem, with due regard for the maturity 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 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
        {¶48} The court also found that several factors under R.C. 2151.414(E) indicated

that C.P. should not be placed with Mother. Specifically, the court found that:

        (1) Following the placement of the child outside the child’s 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 parent has failed continuously and
        repeatedly to substantially remedy the conditions causing the child to be
        placed outside the child’s home, as set forth under subsection (1);

         (2) The parent has had parental rights involuntarily terminated with respect
        to a sibling of the child pursuant to this section or section 2151.353 or
        2151.415 of the Revised Code * * * and the parent has failed to provide
        clear and convincing evidence to prove that, notwithstanding the prior
        termination, the parent can provide a legally secure permanent placement
        and adequate care for the health, welfare, and safety of the child,

as set forth under subsection (11); and (3) other relevant factors, as allowed for under

subsection 16, which the court found to be C.P.’s medical condition and Mother’s denial

about it.

        {¶49} With respect to Mother’s visitation and bonding with C.P., it is true that she

visited with him and, according to social worker Goodwin, there was some bonding.

But both Motley and Goodwin testified that after her initial interaction with C.P. during

the supervised visits, she would “sit back” and observe, rather than interact with C.P.



equivalent agency in another state;

       (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.
       {¶50} Finally, because at the time of C.P.’s birth Mother’s parental rights had been

terminated as to four of her other children, the Agency sought, and the trial court granted,

a determination that reasonable efforts for reunification were not required.    Nonetheless,

as the trial court noted, the Agency did make efforts to see if Mother and C.P. could be

reunited.    However, the record demonstrates that although Mother may have made some

progress, not enough progress was made to support a clear and convincing determination

that it was in C.P.’s best interest to be reunited with Mother.

       {¶51} Thus, on this record, clear and convincing evidence supports the trial court’s

judgment granting permanent custody of C.P. to CCDCFS. Mother’s sole assignment of

error is, therefore, overruled.

       {¶52} 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 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.




LARRY A. JONES, SR., PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
