[Cite as In re I.E.,
2024-Ohio-5487.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE I.E., ET AL. :
: No. 114069
Minor Children :
:
[Appeal by Mother, S.E.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 21, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD-22903175, AD-22903176, and AD-22903177
Appearances:
Wargo Law, LLC, and Leslie E. Wargo, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
LISA B. FORBES, P.J.:
S.E. (“Mother”) appeals the juvenile court’s decision terminating her
parental rights and awarding permanent custody of her three children I.E., Isa. E.
and Ish. E. (“Children”) to the Cuyahoga County Division of Children and Family
Services (“CCDCFS”). Mother argues that the court’s decision was not supported by
sufficient evidence in the record and was against the manifest weight of the evidence.
After reviewing the facts of the case and pertinent law, we affirm the juvenile court’s
judgment.
I. Procedural History
On March 29, 2022, CCDCFS filed a complaint that alleged that the
Children were neglected and dependent and requested a predispositional order of
temporary custody to CCDCFS. On March 30, 2022, the court granted the motion
and the Children were placed into the predispositional temporary custody of
CCDCFS. On August 26, 2022, the Children were adjudicated neglected and
dependent and were committed to the temporary custody of CCDCFS.
On February 10, 2023, CCDCFS filed a motion to modify temporary
custody to permanent custody for the Children. After a hearing on the motion, it
was denied. An extension of the temporary custody order was granted.
CCDCFS filed a second motion to modify temporary custody to
permanent custody for the Children on September 27, 2023. The hearing was held
on May 7, 2024. On May 13, 2024, the trial court granted CCDCFS’s motion,
awarded permanent custody of the Children to CCDCFS, and terminated Mother’s
parental rights. It is from these orders that Mother appeals, raising one assignment
of error for our review:
The trial court’s judgments granting permanent custody to the agency
were not based upon sufficient clear and convincing evidence, were
against the manifest weight of the evidence and it erred in finding
permanent custody to be in the best interests of the children.
II. Hearing Testimony
The following testimony and evidence were presented at the May 7,
2024 hearing on CCDCFS’s motion for permanent custody.
A. Traci Porter
Traci Porter (“Porter”) testified that she was employed by CCDCFS in
the extended-services department. She was co-assigned to the Children’s case in
April 2022 and took over sole responsibility for the case in July 2022. Porter
testified that S.E. is Mother and I.B. is Father because paternity had been
established for each child. At the time CCDCFS became involved with the Children,
Mother had sole custody of them.
Porter recalled that the Children came into CCDCFS custody due to
deplorable home conditions such as no electricity or water. Additionally, Mother
had sobriety issues and was intoxicated when CCDCFS went to the home. The
Children have remained in CCDCFS custody since the initial removal at the start of
this case in March 2022.
CCDCFS created a case plan for the family to facilitate reunification.
Mother’s objectives included random drug screens, mental-health improvement,
housing, employment, and domestic-violence counseling.
Porter stated that as of trial she did not know where Mother was
residing and that, to her knowledge, Mother never had stable housing. Mother also
had mental-health issues, which is why the mental-health section of her case plan
required Mother to see a therapist and have mental-health case management and
medication management. CCDCFS made several referrals to Signature Health,
Moore Counseling, Murtis Taylor, and New Vision. Mother completed one mental-
health assessment in July 2023 where medication was prescribed. Mother never
went back for treatment and she never took the prescribed medication. Porter had
active concerns about Mother’s mental health because she is still not being treated
for it.
Domestic-violence services were part of the case plan because Mother
had exhibited erratic and angry behavior with the Children and had gotten into
physical altercations with people during visits with the Children.
Substance-abuse assessment and treatment were included as part of
Mother’s case plan because she had openly admitted to smoking marijuana. She
had been intoxicated during conversations with Porter. Mother was referred to an
outpatient program, from which she was dismissed for failure to participate.
CCDCFS required Mother to get drug tested two to three times a month. Mother
only completed two drug screens for CCDCFS, one in 2022 and one in 2023.
Porter testified that Mother had not been in contact with CCDCFS for
the three months prior to trial, and Porter had been unable to communicate with
Mother during that time. A couple of weeks prior to trial, the Children told Porter
they had had contact with Mother and gave Porter a phone number for Mother.
When Porter finally was able to communicate with Mother, Mother explained that
she was unavailable for three months because she was “trying to get herself
together,” so she “had to take a step back” to do that.
Mother did not have any in-person visits with the Children during the
three months prior to the hearing on the permanent custody motion even though
supervised visitations were scheduled for every other week. The visitations were
originally weekly, but because of Mother’s inconsistency in attending visits, the visits
went to every other week. Twice, Porter involved security during a visit because of
Mother’s angry and erratic behavior in front of the Children, who have normalized
her behavior. The Children have beseeched Mother to stop the angry erratic
behavior so the visits would not be canceled. Porter recalled a positive visit Mother
had with the Children during which she admitted to them that she knew she had not
done what she was supposed to have done to comply with her case plan, but made
sure they knew she loves them. When Mother showed up for visits, during most of
them she was playful with the Children.
Porter testified that in early 2024, Mother had provided some
paystubs to her from 2023, but Mother had provided nothing for 2024 before the
May 2024 hearing. As far as Porter knew, Mother had been living at a friend’s house,
despite being provided several referrals to housing programs. Porter did not know
where Mother was living at the time of the hearing because she had been missing for
three months.
Regarding the Children’s Father, Porter testified about his
involvement with the Children as follows: Father had visits scheduled for every other
week, but he attended only four visits, with the last visit occurring in the middle of
2023. Porter testified that Father has not engaged with the Children and they have
not had any contact with him in 2024. He had a case plan that involved needing to
secure stable housing for reunification. Throughout this case, Father lived in a one-
bedroom apartment with his mother so there was no room for the Children. Father
told Porter he knew he could not take care of the Children. Porter did not believe
Father would be able to care for the Children.
The Children have been placed together in a foster home since August
2022. They have bonded well with their caregivers. They are in a disciplined
environment; the foster family is providing stable housing and meeting basic needs.
The Children are currently in school and participate in extracurricular activities.
Porter explained that the Children were first placed with their
maternal grandmother, but maternal grandmother did not have room for all three
Children in her single-bedroom home. There was also an issue with Mother who
interfered with maternal grandmother’s ability to parent the Children. Mother
made threatening calls and overstepped maternal grandmother’s house rules and
boundaries regarding the Children.
In Porter’s professional opinion, it is in the Children’s best interest to
be in the permanent custody of CCDCFS so that they have stable housing and their
basic needs are met. Porter testified that Mother’s reunification plan with the
Children required her to establish sobriety, stable housing, mental health, and
consistent employment; Mother failed to establish any of those. In making her
recommendation, Porter highlighted that Mother has been noncompliant with
taking medication for her mental health because she does not believe she needs it.
The Children have been in CCDCFS’s custody since March 2022.
CCDCFS’s motion for permanent custody was filed on September 27, 2023. They
have been in their current foster home since August 2022. They are comfortable in
their foster care. The Children informed Porter that they desire to stay in the foster
home. Mother failed to appear at any of the scheduled visits over the three months
preceding the hearing on permanent custody. The Children have been doing well
without visits with Mother.
B. Guardian Ad Litem’s Report
The court also reviewed the report provided by the Children’s
guardian ad litem (“GAL”). The report was filed on April 30, 2024. The GAL
conducted interviews with the Children, their foster parents, Mother, Father,
CCDCFS workers Shannon Fraser and Porter, as well as the court-appointed special-
advocate (“CASA”) attorney. The GAL reported that neither Mother nor Father have
made any progress on their case plans. The GAL noted that that Children were
comfortable in the foster home. They expressed that they like living there and have
a good relationship with their caregivers. Based on his investigation of the case, the
GAL recommended the Children be committed to the permanent custody of
CCDCFS.
C. Court-Appointed Special-Advocate’s Report
The trial court also reviewed a report from the CASA attorney that
was filed on May 1, 2024. The report indicated that Mother made no progress with
her case plan in over two years. There was no reason to think in the foreseeable
future that she would be capable of taking care of the Children. The report stated
that the CASA attorney had visited the Children at their foster home several times
and found them to be well cared for. In conclusion, the CASA attorney
recommended that permanent custody be granted to CCDCFS.
III. Law and Analysis
A. Standard of Review — Permanent Custody
“Courts apply a two-pronged test when ruling on permanent custody
motions.” In re De.D., 2020-Ohio-906, ¶ 16 (8th Dist.). “To grant the motion,
courts first must find that any of the factors in R.C. 2151.414(B)(1)(a)-(e) apply.
Second, courts must determine that terminating parental rights and granting
permanent custody to CCDCFS is in the best interest of the child or children using
the factors in R.C. 2151.414(D).”
Id.
“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 M.J., 2013-Ohio-5440, ¶ 24 (8th
Dist.). The Ohio Supreme Court recently clarified that, when reviewing a juvenile
court’s award of permanent custody and termination of parental rights, “the proper
appellate standards of review to apply . . . are the sufficiency-of-the-evidence and/or
manifest-weight-of-the-evidence standards, as appropriate depending on the nature
of the arguments that are presented by the parties” rather than an abuse-of-
discretion standard. In re Z.C.,
2023-Ohio-4703, ¶ 18.
“Although sufficiency and manifest weight are distinct legal concepts,
a finding that a judgment is supported by the manifest weight of the evidence
necessarily includes a finding that sufficient evidence supports the judgment.” In re
P.S, 2023-Ohio-144, ¶ 30 (8th Dist.).
B. R.C. 2151.414(B)(1) Factors
The first prong of the test requires the finding of any factors in
R.C. 2151.414(B)(1)(a)-(e). “Only one of the factors must be present to satisfy the
first prong of the two-part analysis for granting permanent custody to an agency.”
In re D.H., 2021-Ohio-3821, ¶ 27 (8th Dist.), citing In re L.W.,
2017-Ohio-657, ¶ 28
(8th Dist.).
The trial court found that R.C. 2151.414(B)(1)(a) was satisfied as to
each of the Children; however, we disagree. Section (B)(1)(a) is satisfied if the child
has not been abandoned or orphaned or has not been in agency custody for 12 or
more months of a consecutive 22-month period and “the child cannot be placed with
either of the child’s parents within a reasonable time or should not be placed with
the child's parents.” The trial court found that the Children have not been in the
custody of the agency for 12 months or more in a consecutive 22-month period.
However, the undisputed evidence establishes that the Children have been in
CCDCFS’s custody for over 12 months in a 22-consecutive month period, which
satisfies R.C. 2151.414(B)(1)(d). “[T]he time period for R.C. 2151.414(B)(1)(d) is
calculated from when the child enters custody of the agency [to] the filing of the
motion for permanent custody.” In re J.C., 2018-Ohio-2234, ¶ 29 (8th Dist.). The
Children were placed into CCDCFS custody on March 28, 2022, and the permanent
custody motion was filed on September 27, 2023, 18 months later. The Children
were continuously in the custody of CCDCFS for that entire 18-month time period.
The record clearly and convincingly establishes that R.C. 2151.414(B)(1)(d) has been
satisfied. Consequently, the conditions for applying R.C. 2151.414(B)(1)(a) have not
been met.
Appellate courts may decide an issue on grounds different than those
determined by the trial court when the evidentiary basis for the court of appeal’s
decision is a legal issue that must have been adduced before the trial court and was
a part of the record. State v. Peagler, 76 Ohio St.3d 496 (1996), paragraph one of
syllabus.
Because only one (B)(1) factor is needed, the first prong of the two-
part analysis is satisfied, and we need not consider the trial court’s superfluous
finding under R.C. 2151.414(B)(1)(a). In re J.F., 2024-Ohio-3407, ¶ 16 (8th Dist.).
Next, we consider the second prong of the two-part analysis, namely whether
terminating parental rights and granting permanent custody to CCDCFS is in the
best interest of the Children. This is determined by applying the five best-interest
factors in R.C. 2151.414(D).
C. R.C. 2151.414(D)(1) Best-Interest Factors
In its May 13, 2024 journal entry, the court indicated it had
considered each of the best-interest factors identified under R.C. 2151.414(D)(1):
(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 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 factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and the child
The trial court stated in its entry that it concluded “by clear and convincing evidence
that it is in the best interest of the child[ren] to grant permanent custody to
[CCDCFS].”
Subsection (a) concerns the relationship between the Children with
their family and foster caregivers. The trial court heard evidence concerning the
Children’s relationships with their Mother and foster parents. Mother clearly loves
her Children, and she attended some visits, but she also cancelled many visits.
Mother stopped attending entirely for the last three months before trial. At least
twice during visits, security had to be called because of Mother’s angry and erratic
behavior. Testimony was also presented that the Children have bonded well with
their foster caregivers and were unaffected during the months Mother did not visit
with them from March to May 2024. This evidence clearly and convincingly
supports the trial court’s best-interest finding under subsection (a).
Subsection (b) concerns the wishes of the Children. Porter testified
that the Children would rather stay with their foster parents in their foster home:
Q. Okay. And is it fair to say that as of now, their desire would be to
stay in that foster home?
A. Yes.
The GAL and CASA attorneys both opined that the best interest of the Children was
permanent custody with CCDCFS. The GAL report noted that the Children were
comfortable in the foster home, they expressed that they like living there, and they
have a good relationship with their caregivers. This evidence clearly and
convincingly supports the trial court’s best-interest finding under subsection (b).
Subsection (c) concerns whether the Children have been in the
temporary custody of CCDCFS for 12 or more months of a consecutive 22-month
period. As addressed, the record establishes that the Children were placed with
CCDCFS on March 28, 2022. The motion for permanent custody for the Children
was filed on September 27, 2023, 18 months later and well over the 12 months
required under subsection (c). This clear and convincing evidence supports the trial
court’s best-interest finding under subsection (c).
Under subsection (d), the court must consider 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.” “Although the Ohio Revised
Code does not define the term, ‘legally secure permanent placement,’ this court and
others have generally interpreted the phrase to mean a safe, stable, consistent
environment where a child's needs will be met.” In re L.M., 2024-Ohio-1435, ¶ 47
(4th Dist.), quoting, In re M.B.,
2016-Ohio-793, ¶ 56 (4th Dist.). Thus, “[a] legally
secure permanent placement is more than a house with four walls. Rather, it
generally encompasses a stable environment where a child will live in safety with
one or more dependable adults who will provide for the child’s needs.” In re M.B.
at ¶ 56.
In the case before us, clear and convincing evidence supports the trial
court’s finding that the Children need a legally secure permanent placement and that
they can only achieve this type of placement by granting the agency permanent
custody. Mother is not able to provide a secure permanent placement for the
Children and cannot be considered dependable. She failed to reliably attend
scheduled visitations throughout the time following the initial removal of the
Children. Mother is not able to provide for the Children’s basic needs. Mother has
failed to complete any of her plan objectives, which included a stable-housing
objective. The only evidence of a stable environment with dependable adults who
meet the Children’s basic needs is found with their foster parents. The evidence
clearly and convincingly supports the trial court’s best-interest finding under
subsection (d).
Under subsection (e), the court indicated it considered whether any
factors in division (E)(7) to (11) apply in relation to the parents and the Children. In
its May 13, 2024 journal entry, the trial court found subsection (E)(10) applied,
because the court made a finding that “the parent has abandoned the [Children].”
However, a review of the evidence does not support this finding. R.C. 2151.011(C)
provides that “a child shall be presumed abandoned when the parents of the child
have failed to visit or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child after that period of
ninety days.” In re L.D., 2017-Ohio-1037, ¶ 34 (8th Dist.).
Here, there is not sufficient evidence to establish that Mother did not
make contact with the Children for more than 90 days. The evidence instead shows
that, even though CCDCFS was unable to get in contact with Mother for the three
months prior to the hearing, Mother was still maintaining contact with the Children.
The Children told Porter she had been contacting them and even provided Porter
with a new phone number for Mother. As such, we find the clear and convincing
evidence here establishes that subsection (e) does not apply.
Our review of the record shows that clear and convincing evidence
supports the trial court’s findings under R.C. 2151.414(D)(1)(a)-(d) such that
permanent custody with CCDCFS is in the best interest of the Children.
D. Trial Court Findings Pursuant to R.C. 2151.414(E)
While R.C. 2151.414(E) findings are not necessary because
R.C. 2151.414(B)(1)(d) applies in this case, the trial court made findings in its journal
entry pursuant to R.C. 2151.414(E), and Mother argues in her brief that there is not
sufficient evidence to support the trial court’s findings against her under (E)(1),
(E)(4), and (E)(10). We disagree as it relates to (E)(1) and (E)(4), but as discussed,
we agree with Mother that evidence does not support abandonment under (E)(10).
R.C. 2151.414(E) states, in pertinent part, that “‘[i]f the court
determines, by clear and convincing evidence, … that one or more of the
[enumerated (E) factors] exist as to each of the child’s parents, the court shall enter
a finding that the child cannot be placed with either parent within a reasonable time
or should not be placed with either parent[.]’” In re JA.B, 2024-Ohio-453, ¶ 39 (8th
Dist.), quoting R.C. 2151.414(E). In this case, in its journal entry the court found
that the Children cannot be placed with one of the Children’s parents within a
reasonable time or should not be placed with either parent, applying
R.C. 2151.414(E)(1), (E)(4), and (E)(10) as follows:
The Court finds that the child cannot be placed with one of the child’s
parents within a reasonable time or should not be placed with either
parent, pursuant to O.R.C. 2151.414(E):
(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.
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child.
(10) The parent has abandoned the child.
We find the trial court’s findings under (E)(1) and (E)(4) were
supported by clear and convincing evidence. The record establishes that Mother
failed continuously and repeatedly to substantially remedy any of the conditions that
caused the Children to be placed in foster care. Although Mother’s case plan
required random drug screens, mental-health improvement, housing, employment,
and domestic-violence counseling, the evidence demonstrated that Mother had not
participated in the drug screens, did nothing to improve her mental health, did not
demonstrate that she had secured stable housing, did not have consistent
employment, and did not partake of domestic-violence services.
The court’s finding that Mother lacked commitment to the Children
pursuant to (E)(4) is also supported by clear and convincing evidence. The
testimony at trial established that Mother failed to follow her case plan or attend
visitations regularly. Visits were decreased from weekly to biweekly because of
Mother’s spotty attendance. Even then, Mother missed several visits with the
Children. For three months, from March to May, Mother did not visit her Children.
Further, the evidence revealed “other actions showing an unwillingness to provide
an adequate permanent home” under (E)(4). For example, Mother’s erratic and
aggressive behavior during two separate visits with her Children resulted in security
being called.
The evidence clearly and convincingly shows that Mother failed to
remedy the conditions that caused the Children to be placed in foster care and
demonstrated a lack of commitment toward the Children such that the Children
“cannot be placed with one of the child’s parents within a reasonable time or should
not be placed with either parent.”
IV. Conclusion
Upon review, we find the juvenile court’s decision awarding
permanent custody to CCDCFS and terminating Mother’s parental rights was
supported by sufficient evidence and was not against the manifest weight of the
evidence. Accordingly, Mother’s sole assignment of error is overruled.
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 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.
____________________________
LISA B. FORBES, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
