[Cite as In re T.M., 2016-Ohio-4964.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 103899




                                         IN RE: T.M.
                                        A Minor Child
                                   [Appeal By T.M., Mother]



                                        JUDGMENT:
                                         AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 15906440


        BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                 July 14, 2016
ATTORNEY FOR APPELLANT

Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Tamara M. Reeves
Assistant Prosecuting Attorney
Cuyahoga Jobs and Family Services
8111 Quincy Avenue
Cleveland, Ohio 44104
KATHLEEN ANN KEOUGH, P.J.:

      {¶1} Appellant-mother (“mother”), appeals from the judgment of the Cuyahoga

County Common Pleas Court, Juvenile Division, granting permanent custody of her

minor child, T.M., to appellee, the Cuyahoga County Department of Children and Family

Services (“CCDCFS”). For the reasons that follow, we affirm.

      {¶2} In October 2013, mother pleaded guilty to drug possession and was sentenced

to two years of community control sanctions. In June 2014, after testing positive for

PCP, her community control was revoked and she was ordered to serve nine months in

prison. At the time of the revocation, mother was pregnant; on November 10, 2014, she

gave birth to T.M. while incarcerated.

      {¶3} On November 13, 2014, the juvenile court issued an emergency custody

order that placed T.M. in the predispositional temporary custody of CCDCFS. T.M. was

placed in the same foster home as her younger twin sisters, who were previously removed

from mother’s care in 2013 when the twins were born at 24 weeks.

      {¶4} In July 2015, the trial court held an adjudication hearing where mother was

present. Mother admitted to the allegations in the amended complaint and the trial court

adjudicated T.M. a dependent child.

      {¶5} On November 13, 2015, the trial court held a joint dispositional hearing for

T.M. and her twin sisters. Following the hearing, the trial court granted permanent

custody of all three children to CCDCFS and terminated the parental rights of both

mother and father.
       {¶6} Mother appeals, raising three assignments of error challenging only the

permanent custody disposition of T.M.1

                                           Consolidation

       {¶7} In her first assignment of error, mother contends that the trial court erred in

consolidating all of the cases and interchanging evidence between cases to arrive at a

determination of permanent custody. She claims she was denied due process of law.

       {¶8} First, we note that the record does not indicate that the cases were ordered

consolidated pursuant to Civ.R. 42. Each case retained its own case number and case

name. The record reflects that the court held a joint disposition hearing for all three

children. No objection was raised regarding the court considering these cases together

prior to the court conducting the hearing.

       {¶9} In the event that the cases were implicitly consolidated, we find no abuse of

discretion by the trial court. Just as there is no juvenile rule that specifically allows

consolidation, there is no juvenile rule that prohibits such consolidation. Civ.R. 42(A)(1)

provides that “if actions before the court involve a common question of law or fact, the

court may, (a) join for hearing or trial any and all matters at issue in the actions; (b)

consolidate the actions; or (c) issue any other orders to avoid unnecessary cost or delay.”

       {¶10} As the Ohio Supreme Court noted,

       [T]he thrust of Civ. R. 42(A) is to vest discretion in the Court of Common
       Pleas to determine whether consolidation of cases is to be permitted where

         Father is not a party to this appeal. Therefore, no facts will be discussed regarding father’s
       1


participation, or lack thereof, in his case plan or with the children.
       the circumstances specified in the rule exists. The purpose of the rule is to
       avoid unnecessary costs or delay in the interests of judicial efficiency. * * *
       The management of cases lies within the discretion of the court, and not
       with the parties so long as the rights of the parties are adequately protected.

(Quotes omitted). Dir. of Highways v. Kleines, 38 Ohio St.2d 317, 319-320, 313 N.E.2d

370 (1974); Garrett v. Cook, 8th Dist. Cuyahoga Nos. 40879 and 40880, 1980 Ohio App.

LEXIS 11413, *6-7 (Apr. 17, 1980).

       {¶11} In this case, the court had before it three cases where the children, all sisters,

were each adjudicated dependent and placed in the emergency custody and temporary

custody of CCDCFS.        The parties to the cases were the same.           Mother was the

biological mother of all three children, and the alleged father of T.M. was the established

father of the twins. Furthermore, the children resided with the same foster mother for

over a year, the guardian ad litem for the children was the same, and the social worker

assigned to mother and father’s case plan was the same. Accordingly, all cases had

interrelated factual situations and thus common questions of fact.

       {¶12} Moreover, in these cases, the court was making a determination of

permanently terminating parental rights of both mother and father, and making the

determination of whether permanent custody should be granted to CCDCFS. Therefore,

the court also had common questions of law. Accordingly, because the trial court had to

determine common questions of law and fact, the court did not abuse its discretion by

considering the cases together for disposition.

       {¶13} Furthermore, mother was not denied due process of law. She received

notice of the disposition hearing.       She was represented by counsel who had an
opportunity to cross-examine the agency’s witnesses and call witnesses on her behalf.

No objection was raised regarding the consideration of the cases together for the

disposition, and the hearing transcript does not indicate any element of surprise indicating

that mother was unaware that the hearings would occur together.

       {¶14} Finally, we note that, unlike on appeal where mother is only appealing the

trial court’s determination of permanent custody of T.M., mother was opposing the grant

of permanent custody for all three children. Therefore, the trial court was looking at all

the facts and circumstances in deciding whether mother would be able to care for three

infants, including two with severe medical issues and needs.         The court could not

piecemeal the testimony when mother was opposing all three requests for permanent

custody.

       {¶15} Accordingly, we find that the trial court did not abuse its discretion in

hearing the cases together at the disposition hearing. Mother’s first assignment of error

is overruled.

                             Manifest Weight of the Evidence

       {¶16} In her second assignment of error, mother contends that the trial court’s

finding for permanent custody was against the manifest weight of the evidence.

       {¶17} When reviewing a trial court’s judgment in child custody cases, the

appropriate standard of review is whether the trial court abused its discretion. Masters v.

Masters, 69 Ohio St.3d 83, 85, 630 N.E.2d 665 (1994). An abuse of discretion is more

than an error of law or judgment; it implies that the court’s attitude was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). “When reviewing the trial court’s custody decision, an appellate

court must make ‘every reasonable presumption in favor of the lower court’s judgment

and finding of facts.’” In re M.S., 8th Dist. Cuyahoga No. 101693, 2015-Ohio-1028, ¶ 6,

quoting In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240 (3d Dist.1994).

       {¶18} Termination of parental rights is an alternative of last resort but is

sanctioned when necessary for the welfare of a child. In re Wise, 96 Ohio App.3d 619,

624, 645 N.E.2d 812 (9th Dist.1994). Before a juvenile court may terminate parental

rights and award permanent custody of a child, it must find by clear and convincing

evidence that (1) the grant of permanent custody to the agency is in the best interest of the

child; 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 twelve or more months of a

consecutive twenty-two month period. R.C. 2151.414(B)(1).

       {¶19} “Clear and convincing” evidence is more than a mere “preponderance of the

evidence,” but does not rise to the level of certainty required by the “beyond a reasonable

doubt” standard in criminal cases. In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d

424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d

176, 180-181, 512 N.E.2d 979 (1987). It produces in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be established. Id. Where clear and

convincing evidence is required at trial, a reviewing court will examine the record to

determine whether the trier of fact had sufficient evidence before it to satisfy the degree

of proof. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24, citing State v.

Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); In re Starkey, 150 Ohio App.3d

612, 2002-Ohio-6892, 782 N.E.2d 665, ¶ 16 (7th Dist.).

      {¶20} In this case, the trial court determined that the second prong of R.C.

2151.414(B)(1) was satisfied because T.M. could not be placed with either parent within

a reasonable period of time or should not be placed with her parents.                 R.C.

2151.414(B)(1)(a). When making this determination, the court must consider the factors

contained in R.C. 2151.414(E). The existence of any one of these factors is sufficient to

determine that a child cannot be placed with a parent within a reasonable period of time.

In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 10 (8th Dist.), citing

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

       {¶21} Upon review of the trial court’s journal entry and findings of fact, we glean

that the court determined factors (1) and (4) of R.C. 2151.414(E) were applicable. These

factors apply equally to the twins and T.M.

       {¶22} Under R.C. 2151.414(E)(1), the court must consider whether, despite

“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 failed continuously and repeatedly to substantially remedy the conditions causing
the child to be placed outside their home.” Additionally, under R.C. 2151.414(E)(4), the

court must consider whether the “parent has demonstrated a lack of commitment toward

the child by * * * other actions showing an unwillingness to provide an adequate

permanent home for the child.”

       {¶23} In this case, the trial court found that mother had completed some mental

health counseling prior to being incarcerated; however, she did not re-engage in any

mental health counseling once released from prison. Furthermore, mother only recently

provided documentation to the agency that she was being treated by her primary care

physician for anxiety. She did not provide any documentation that she was linked to a

mental health provider or that she was taking medication for her diagnosis of

schizoeffective disorder.

       {¶24} The court concluded that mother has housing. However, her residence was

found to have insufficient space for any additional children. The testimony provided that

mother has a three bedroom home, with two bedrooms occupied by her two older sons.

Specific to T.M., there was not enough space to add a crib.

       {¶25} Regarding mother’s substance abuse history, the court noted that mother’s

relapse in May 2014 indicated that mother may have engaged in substance abuse while

pregnant with T.M. This was an important factor to consider because despite mother’s

completion of an intensive outpatient program through the ORCA House after being

released from prison, mother refused to engage in any follow-up counseling.
Additionally, the evidence showed that although mother would submit to drug tests, she

would not submit when requested, but only once a month or every other visit with T.M.

       {¶26} Accordingly, there was clear and convincing evidence supporting the trial

court’s determination that T.M. cannot be placed with either parent within a reasonable

period of time or should not be placed with the parents — satisfying the second prong of

R.C. 2151.414(B)(1).

       {¶27} Having made this determination, the trial court was then required under the

first prong of R.C. 2151.414(B)(1) to make a finding that permanent custody was in

T.M.’s best interest under the factors set forth in R.C. 2151.414(D)(1)-(5).

       {¶28} When considering the best interest of a child in a permanent custody

hearing, the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant

factors, including, but not limited to: (a) the interaction and interrelationship of the child

with the child’s parents, siblings, relatives, foster parents, 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; (c) the custodial history of the child; (d) the

child’s need for a legally secured permanent placement and whether that type of

placement can be achieved without a grant of permanent custody to the agency; and (e)

whether any of the factors in R.C. 2151.414(E)(7) to (11) apply in relation to the parents

and child. Although a trial court is required to consider each of the R.C. 2151.414(D)(1)

factors in making its permanent custody determination, “[o]nly one of these factors needs
to be resolved in favor of the award of permanent custody.” In re A.B., 8th Dist.

Cuyahoga No. 99836, 2013-Ohio-3818, ¶ 17.

        {¶29} In this case, the evidence before the juvenile court clearly and convincingly

demonstrated that upon consideration of the R.C. 2151.414(D)(1) factors, awarding

permanent custody to CCDCFS was in T.M.’s best interest. First, with respect to the

child’s relationship with her mother, siblings, and foster mother, testimony was provided

that mother visits with T.M. biweekly and the visits were appropriate.           However,

Deborah Carr, CCDCFS social worker supervisor, testified that the bond between T.M.,

her sisters, and their foster mother is significant. Since birth, T.M. has been living with

her sisters and with the same foster mother, who has been her sole caregiver and provider.

        {¶30} T.M.’s foster mother testified that T.M. is adjusting well, and all three

sisters care for and “love on” each other, and they miss each other when separated. She

further stated that T.M. does not have special needs, but noted that because she was born

about a month premature, there is a little delay in her milestones, like crawling and

standing. She stated that T.M. is on average where she should be and is progressing

well.

        {¶31} Regarding the wishes of the child, the guardian ad litem for all three

children recommended that the court grant permanent custody. She was most concerned

that mother had not requested any visits beyond the scheduled time, including overnight

visits. She was also concerned about the probation violation related to the use of PCP.
      {¶32} Carr testified that CCDCFS was seeking permanent custody because T.M.

was receiving proper care with foster mother. Carr still had concerns that mother had not

substantially addressed her mental health issues, or engaged in aftercare services for

substance abuse treatment. She found this important because mother had previously

relapsed after receiving treatment, and mother was not consistent in submitting to urine

screens.

      {¶33} Finally, the evidence demonstrated that mother’s current living situation is

not conducive for additional children in the household. Carr testified that there was not

enough room for another crib or bed because mother’s two older sons live with her.

      {¶34} Upon review of the record, we find that the trial court weighed all relevant

factors and made a decision in the best interest of T.M. This court finds clear and

convincing evidence supporting the trial court’s decision. Accordingly, the trial court

did not abuse its discretion in granting permanent custody of T.M. to CCDCFS.

Appellant’s second assignment of error is overruled.

                             Effective Assistance of Counsel

       {¶35} In her third assignment of error, mother contends that the proceedings were

fatally flawed by mother’s ineffective assistance of counsel. Specifically, mother argues

that her counsel was ineffective for failing to object to the trial court consolidating the

two cases.

       {¶36} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable representation
and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674. (1984). Prejudice is established when the defendant

demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.          A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland at 694.

       {¶37} Having found that consolidation or joint consideration of the cases was

appropriate and that the trial court did not abuse its discretion in hearing the cases

together for disposition, we find that counsel was not ineffective for failing to object.

       {¶38} Moreover, even if T.M.’s case was considered separately, there is not a

reasonable probability that the result would have been different. Mother’s household

could not even accommodate one additional bed or crib, she did not re-engage in mental

health care and counseling, and she did not seek any aftercare for substance treatment

after completing a 30-day program. These factors were a constant with all of mother’s

children. Therefore, whether the cases were considered separately or together, the result

would have been the same; mother’s repeated failure to remedy her own situation was the

cause of the grant of permanent custody.         Accordingly, the assignment of error is

overruled.

       {¶39} 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.



KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
