[Cite as In re M.W., 2017-Ohio-8580.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                         No. 105565




                                        IN RE: M.W., ET AL.
                                           Minor Children

                                         [Appeal By Mother]




                                           JUDGMENT:
                                            AFFIRMED



                                       Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                             Case Nos. AD 15902651 and AD 15902653

        BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 16, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

Morgan L. Pirc
Assistant Public Defender
9300 Quincy Avenue, 5th Floor
Cleveland, Ohio 44106


ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anthony R. Beery
Assistant Prosecuting Attorney
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144

For D.D., Father

Troy M. Hough
21887 Lorain Road, #306
Cleveland, Ohio 44126

Also listed:

Guardian ad litem for Children

Richard D. Summers
McDonald Hopkins Co., L.P.A.
600 Superior Avenue, E., Suite 2100
Cleveland, Ohio 44114

Guardian ad litem for Mother

Susan K. Jankite
1253 Arlington Road
Lakewood, Ohio 44107
SEAN C. GALLAGHER, J.:

       {¶1} Appellant mother (“Mother”) appeals from the orders awarding permanent custody

of her two children, M.W. and D.D., to the Cuyahoga County Division of Children and Family

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

       {¶2} On February 26, 2015, CCDCFS filed a complaint alleging M.W. and D.D. to be

neglected and dependent children. Along with the complaint, CCDCFS filed a motion for

predispositional temporary custody, which was granted by the court magistrate. The children

were placed in the emergency custody of CCDCFS on March 10, 2015.

       {¶3} A case plan was developed for Mother and the alleged father. The alleged father

did not engage in any services or visit with the children during the pendency of the case. The

case plan for Mother included parenting classes, domestic violence services, mental health

services, and meeting the special needs of the children. The permanency plan was reunification.

       {¶4} An adjudicatory hearing was held on June 23, 2015. The parents stipulated to an

amended complaint, and the magistrate adjudicated the children as dependent. The magistrate’s

decision was adopted by the trial court.

       {¶5} Among the allegations stipulated to in the amended complaint were that M.W. was

previously adjudicated neglected and dependent because of concerns of domestic violence

between Mother and the children’s alleged father, that there was a need to ensure that the

children receive services to address their developmental delays, and that Mother requires mental

health treatment.

       {¶6} The children were committed to the temporary custody of CCDCFS. On March 1,

2016, the trial court granted a motion for first extension of temporary custody. On June 16,

2016, CCDCFS filed a motion to modify temporary custody to permanent custody.               The
CCDCFS social worker involved in the case testified that there was still hope that “mom can turn

things around * * * and that we can be able to take our motion off the table. It just wasn’t able

to happen in this case.”

       {¶7} The trial court conducted a hearing on January 24 and 25, 2017. There was no

dispute that the children had been in the custody of CCDCFS for 12 or more months of a

consecutive 22-month period.

       {¶8} There was evidence that Mother engaged in case plan services. She completed two

parenting classes, engaged in domestic violence services, and engaged in mental health services.

However, at the time of the hearing, there was uncertainty as to whether Mother had benefitted

from these services.

       {¶9} There was evidence of a history of domestic violence in the home between Mother

and the alleged father of the children, with the alleged father being the aggressor.          After

Mother’s completion of a first domestic violence class, an incident occurred involving Mother

and the alleged father, with Mother’s oldest child, who is not involved in this case, present in the

home. Mother was still actively engaged in domestic violence services at the time of the

permanent custody hearing. There was evidence that Mother has maintained a relationship with

the alleged father, who is in prison and due to be released in 2018.

       {¶10} There was testimony concerning the developmental delays and special needs of the

children. Both children receive mental health services and occupational therapy, and M.W. also

receives speech therapy and physical therapy. The foster mother testified that she takes the

children to appointments three to four days a week. The record reflects that the children had

bonded with their foster mother. Although the foster mother did not plan to adopt the children,

she was ensuring that their special needs were being met. She stated that she expressed to
Mother the importance of keeping up with their appointments.

       {¶11} There was major concern with Mother’s level of involvement with the special

needs of the children. Despite the recommendation of the social worker and efforts of the foster

mother to involve Mother in the children’s therapies and appointments, Mother attended only one

appointment in two years and was late to that appointment.

       {¶12} The doctor who performed a psychological evaluation of Mother identified

concerns for Mother’s parenting style, her lack of insight into why she is involved with

CCDCFS, and her history of being in a relationship that involved domestic violence.

       {¶13} There was testimony that Mother received mental health services at Murtis Taylor,

but she was inconsistent in her engagement with these services. There was testimony that

Mother was noncompliant with taking medication.

       {¶14} There was evidence that Mother had obtained stable housing. Mother’s visitation

with the children had been moved to her home, but the visitation was moved out of the home

after the domestic violence incident with the alleged father while her oldest child was in the

home. Although certain concerns were expressed with regard to Mother’s parenting, there was

testimony that Mother’s interaction with the children was appropriate and that the children loved

their mother and were bonded with her.

       {¶15} The guardian ad litem for the children made a recommendation for a second

extension of temporary custody, though he had recommended permanent custody for the children

in his written report. The guardian ad litem indicated Mother had just completed a parenting

class and needed time to demonstrate that she had benefitted. Nevertheless, he admitted that

Mother’s failure to attend all but one of the children’s appointments over a two-year period was a

“major concern” and opined that Mother was not ready to reunify with the children. Likewise,
the social worker testified that the children had been in the custody of the agency since March

2015 and that she did not believe the mother could be reunified with the children within the next

two months.

       {¶16} After considering the testimony presented, the trial court issued a journal entry for

each child, journalized February 23, 2017, that terminated all parental rights and awarded

permanent custody to CCDCFS. This appeal followed.

       {¶17} Mother raises one assignment of error for our review, which challenges the trial

court’s decision to award permanent custody of the children to CCDCFS. Mother claims the

trial court’s decision is contrary to the evidence presented.

       {¶18} R.C. 2151.414(B) allows a court to grant permanent custody of a child to a children

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

permanent custody is in the best interest of the child and that any of the four conditions set forth

in R.C. 2151.414(B)(1)(a)-(e) applies. The Supreme Court of Ohio has defined “clear and

convincing evidence” 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 as is 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.” Cross v. Ledford, 161 Ohio

St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶19} There is no dispute that the condition under R.C. 2151.414(B)(1)(d) was met

because the children had been in the temporary custody of CCDCFS for 12 or more months of a

consecutive 22-month period. Mother challenges the trial court’s determination that permanent

custody was in the best interest of the children.

       {¶20} If any of the conditions outlined in R.C. 2151.414(B)(1)(a)-(e) exists, the trial court
may proceed to consider whether the grant of permanent custody to the agency is in the best

interest of the child. In re J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 44. In

conducting a best-interest 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} In determining the best interest of a child, R.C. 2151.414(D)(1) directs the trial

court to consider “all relevant factors,” including, but not limited to the following: (1) the

interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster

parents and out-of-home providers, and any other person who may significantly affect the child;

(2) 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; (3) the custodial history of the child; (4) 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; and (5) whether any of the factors set forth in

R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e).

        {¶22} Here, the trial court considered the evidence presented.         Notwithstanding the

recommendation of the guardian ad litem, upon considering all the relevant factors pursuant to

R.C. 2151.414(D), the court found by clear and convincing evidence that an order of permanent

custody is in the best interest of the children.

        {¶23} The court found that father had neglected the children by failing to regularly visit,

communicate with, or support the children; and that his repeated incarceration prevented him

from providing care for the children. The court considered Mother’s engagement in case plan

services, but believed she had failed to benefit from them. The court recognized that Mother
had been noncompliant in taking medication as prescribed and that she had failed to consistently

attend her counseling. The court also found that “mother has not made reasonable efforts to

acquire the needed knowledge to address the [children’s] needs” as evidenced by “her failure to

attend the speech, hearing and physical therapy sessions that the [children] participated in.”

Further, the court found that Mother had “demonstrated a lack of commitment towards the

[children] by failing to end the relationship with the alleged father where she is the victim of

[d]omestic [v]iolence.” Although Mother takes issue with the findings of the trial court as being

“(1) overstated, (2) wrong or outweighed by alternative factors and concerns,” our review reflects

that the trial court appropriately considered the relevant factors in determining the best interest of

the children and that its findings are largely supported by competent, credible evidence in the

record.

          {¶24} Furthermore, the trial court acted within its discretion in choosing not to follow the

oral recommendation of the guardian ad litem, who advocated for a second extension of

temporary custody. A trial court is not bound to follow a guardian ad litem’s recommendation.

“Although the trial court was required to consider the guardian’s recommendation as well as each

of the other statutory best interest factors * * * ‘[t]he best interest test is a balancing test of

several factors and the Supreme Court has stressed that no single factor is controlling.’” In re

O.G., 9th Dist. Lorain No. 12CA010294, 2013-Ohio-744, ¶ 24, quoting In re C.G., 9th Dist.

Summit Nos. 24097 and 24099, 2008-Ohio-3773, ¶ 28. It is evident that a “major concern” in

this matter was Mother’s failure to attend all but one of the children’s appointments over the

pendency of the case; and several witnesses, including the guardian ad litem, opined that Mother

was not ready to reunify with the children, who had been in temporary custody for nearly two

years.
        {¶25} Although the foster mother was not prepared to adopt the children, the Supreme

Court of Ohio has recognized that “the current statutory framework does not expressly require

the court to consider [the child’s probability of being adopted] in making a best-interest

determination, R.C. 2151.414(D).”      In re T.R., 120 Ohio St.3d 136, 2008-Ohio-5219, 896

N.E.2d 1003, ¶ 14. As stated in In re T.R., “the court is not required to factor adoption

possibilities into its analysis, and the agency will be bound to seek adoption for the child if

permanent custody is granted[.]” Id. at ¶ 16.1 There is no doubt that when parental rights are

terminated, the goal is to create “a more stable life for the dependent children and to facilitate

adoption to foster permanency for children.” In re N.B., 8th Dist. Cuyahoga No. 101390,

2015-Ohio-314, ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio

App. LEXIS 7860, 5 (Aug. 1, 1986).

        {¶26} We reiterate that it is the best interest of a child that is the pivotal factor in a

permanency case, and that neglected and/or dependent children are entitled to a stable, secure,

nurturing, and permanent home in the near term. In re N.B., 8th Dist. Cuyahoga No. 105028,

2017-Ohio-1376, ¶ 30. Our review of the record shows that the trial court’s determination as to

each child is supported by clear and convincing evidence and is not against the manifest weight

of the evidence in the record. We overrule the assignment of error and affirm the trial court’s

decisions awarding permanent custody of each child to CCDCFS and terminating Mother’s

parental rights.

        {¶27} Judgment affirmed.


        1
           As held in In re T.R., although R.C. 2151.413(E) “requires a children-services agency
seeking permanent custody of a child to update the child’s case plan to include adoption plans,” the
statute “does not require the agency to perform this action before the juvenile court rules on the
motion for permanent custody.” Id. at ¶ 8.
       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 issue out of this court directing the common pleas

court, juvenile division, 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

FRANK D. CELEBREZZE, JR., J., CONCURS;
MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE DISSENTING OPINION


MELODY J. STEWART, J., DISSENTING:

       {¶28} I respectfully dissent from the majority decision in this case.        The trial court

abused its discretion by terminating Mother’s parental rights. The evidence does not support a

finding that the termination of Mother’s parental rights would be in the best interest of the

children under the circumstances of this case.

       {¶29} As the majority notes, R.C. 2151.414(D)(1) sets forth factors for the court to

consider when determining whether terminating parental rights is in the best interest of the child.

 Those factors include the interaction and interrelationship of the child with the parents, siblings,

and foster parents; the custodial history of the child; and the child’s need for a legally secure

permanent placement and whether that placement can be achieved without a grant of permanent

custody.

       {¶30} In this case, Mother engaged in the case plan services and mental health services,

she has stable housing, is appropriate with her children, and her children love her and are bonded

with her. The primary concerns about Mother maintaining her parental rights center around
domestic violence issues with the alleged father and Mother’s lack of attendance to her children’s

mental health, occupational therapy, physical therapy, and speech therapy appointments.

       {¶31} The alleged father is incarcerated, and at the time of the permanent custody

hearing, Mother was still actively engaged in domestic violence services.              Furthermore,

although the lack of initiative in routinely attending her children’s appointments could,

admittedly, be seen as demonstrating a lack of commitment to her children, there was no

evidence that attending these appointments was required of Mother or a part of her case plan.

The children’s foster mother is responsible for making sure the children get to their

appointments. And, although the foster mother stressed to Mother the importance of keeping up

with the appointments, what is not clear is whether Mother understood this expression to mean

that it is important to keep up with them now or when/if she gets her children back.    To be sure,

the evidence shows that Mother was told about the various appointments, but not that her

attendance was required. As such, it may not have been clear to Mother that reunification was

predicated on her attending the children’s appointments while the foster mother was still

responsible for taking them.

       {¶32} Finally, the most salient reason it appears that terminating Mother’s parental rights

at this time is an abuse of discretion is due to the fact that doing so would not change the

children’s status.   The foster mother is not interested in adopting the children and will continue

to foster them. This status can be maintained while mother has clear and specific expectations

relayed to her on what is required to maintain her parental rights and get her children back.

This is not a case where the parent has not made significant strides toward reunification. And

because the children will continue to be well cared for in the foster mother’s home, regardless of

whether Mother’s rights are terminated, extending the opportunity for reunification seems to be
in the best interest of the children under the circumstances of this case, while terminating

Mother’s parental rights does not.   I would find, therefore, that the trial court abused its

discretion.
