In re K.K.

• Citation: 2019 Ohio 797
• Decision Date: 07 March 2019
• Docket Number: No. 107651,107651
• Parties: IN RE: K.K., ET AL. Minor Children [Appeal by Mother]
• Court: United States Court of Appeals (Ohio)

2019 Ohio 797

IN RE: K.K., ET AL. Minor Children

[Appeal by Mother]

No. 107651

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

March 7, 2019

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division

Case Nos. AD 16916793 and AD 16916794

BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and S. Gallagher, J.

ATTORNEY FOR APPELLANT

Michael E. Stinn

21300 Lorain Road

Fairview Park, Ohio 44126

ATTORNEYS FOR APPELLEES

Attorneys for CCDCFS

Michael C. O'Malley

Cuyahoga County Prosecutor

By: Cheryl Rice

Assistant County Prosecutor

3955 Euclid Avenue

Cleveland, OH 44115

Anthony R. Beery

Assistant County Prosecutor

4261 Fulton Parkway

Cleveland, Ohio 44144

Guardian Ad Litem for Children

William T. Beck

2035 Crocker Road, Suite 104

Westlake, Ohio 44145

Attorney for K.K. and A.K.

Gail A. Nanowsky

P.O. Box 26060

Fairview Park, Ohio 44126

Attorney for C.K.

Pamela A. Hawkins

P.O. Box 43101

Richmond Heights, Ohio 44143

ANITA LASTER MAYS, J.:

{¶1} Appellant Mother of two minor children appeals the juvenile court's decision that it is in the best interest of her children, K.K. and A.K., to be placed in the permanent custody of the Cuyahoga County Department of Children and Family Services ("CCDCFS"). She asks this court to reverse the juvenile court's decision and remand for further proceedings. As required by App.R. 11.1(D), this court has expedited the hearing and disposition of this appeal. We affirm.

{¶2} On November 16, 2016, K.K. and A.K. were committed to the emergency custody of CCDCFS. CCDCFS filed for emergency pre-dispositional temporary custody because they alleged that the children were being neglected. It was alleged that the children were living in deplorable conditions and that their parents were abusing illegal substances. CCDCFS was granted temporary custody over the children on February 7, 2017. On June 1, 2017, CCDCFS filed a motion to modify temporary custody to permanent custody. In November 2017, the Mother did not have adequate housing and had not completed substance abuse treatment. The matter was set for trial. The trial court held a hearing on July 18, 2018. Permanent custody of the children was granted to CCDCFS on August 7, 2018.

I. Facts

{¶3} In their November 16, 2016 complaint, CCDCFS filed for temporary custody of thechildren because on November 15th, a caseworker visited the home and observed unsafe conditions. The home was observed to have holes in the floor, exposed electrical wiring, and inappropriate sleeping conditions for the children. Additionally, it was a one-bedroom home. The presumed father¹ of the children had a substance abuse problem with marijuana and opiates, and the caseworker observed that the children had access to the marijuana in the home. The Mother had substance abuse issues and mental health concerns. K.K. was previously adjudicated and placed in protective supervision of CCDCFS for lack of appropriate housing and the parents' substance abuse issues.

{¶4} At the permanency hearing on July 18, 2018, CCDCFS caseworker Shalonda Allen ("Allen") testified that the permanency plan goal for the children was to reunify them with their parents. Allen stated that the parents were to make progress in securing adequate housing and completing substance abuse treatment. (Tr. 12.) At the time of this hearing, Allen testified that the parents had not made adequate progress. (Tr. 13.) Allen also testified that "Mother was asked to participate in a drug and alcohol assessment as well as a mental health assessment, and to follow through with any treatments that were recommended. She was also asked to participate in parenting classes and to stable housing." Id. {¶5} Allen testified that Mother completed parenting classes. Mother also completed a drug and alcohol assessment and a mental health assessment, but did not follow through with the recommendations. (Tr. 14.) Mother also did not obtain adequate housing, because she and the Father were living in an efficiency apartment at the time of the hearing. Id. In the year and a half since the children were removed from her custody, Mother had not participated in treatment for her substance abuse. (Tr. 15.) The parents were not employed at the time of the permanency hearing. (Tr. 20.) In addition, the presumed father had not established paternity of the children. (Tr. 11.)

{¶6} Allen testified that the presumed father's (hereinafter referred to as "Father") case plan included parenting, drug and alcohol treatment, and to the provision of stable housing for the children. (Tr. 21.) As of the date of the hearing, stable housing had not been provided, because Father was living with Mother in the efficiency. Father had completed his parenting class and was on schedule to complete treatment soon. (Tr. 22.) Father had been discharged from treatment for noncompliance twice for failing drug tests and nonparticipation. (Tr. 23.) Father had tested positive for marijuana and cocaine. (Tr. 24.) Allen also testified that Father would have to establish at least six months of sobriety in order for CCDCFS to feel comfortable stating that Father is sober. (Tr. 25.)

{¶7} After Allen's testimony, William Beck ("Beck"), the guardian ad litem ("GAL") testified that he agreed "that an extension of temporary custody would be appropriate" because "mom and dad haven't done everything they're supposed to do." (Tr. 43.) Beck also testified that Father "is making the effort to try and get his kids back, but he hasn't made enough effort at this point." Id. With Beck's recommendation for an extension of temporary custody and he asked the court to hold the adjudication in abeyance to give the Father an opportunity to makemore progress. (Tr. 44.)

{¶8} When asked about Mother and her progress, Beck testified, "Mom hasn't done anything in this regard or as far as her case plan is concerned." (Tr. 45.) Beck also testified that he was told by Father that he and Mother weren't living together, and was troubled to find out where they were. Id. When asked about his previous testimony regarding Mother not doing anything, Beck corrected it and stated, "[s]he started her parenting classes and she's had her assessments done." (Tr. 46.)

{¶9} At the conclusion of the hearing, the trial court ordered that the motion to modify temporary custody to permanent custody be granted. In the journal entries for both K.K. and A.K., the trial court stated, "[t]he Court finds that the child's continued residence in or return to the home of C.H., Mother, will be contrary to the child's best interest." Journal Entry Nos. 0911461963 and 0911463286 (Aug. 7, 2018).

{¶10} After the ruling, Mother filed this appeal,² assigning two errors for our review:

I. The trial court committed prejudicial error by considering the GAL's written report in reaching its decision to grant permanent custody of the children to CCDCFS. Therefore, the trial court's decision to grant permanent custody of the children to CCDCFS should be reversed; and

II. The trial court's decision to grant permanent custody of the children to CCDCFS is against the manifest weight of the evidence. The trial court abused its discretion in denying parents' motions to extend temporary custody. Therefore, the trial court's decision should be reversed.

II. Guardian Ad Litem Report

A. Standard of Review

{¶11} Now,

"[a]n appellate court will not reverse a juvenile court's termination of parentalrights 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; In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. "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). A reviewing court is required to examine the record to determine whether the trier of fact had sufficient evidence to satisfy the clear and convincing standard. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24.

In re M.L., 2018-Ohio-750, 106 N.E.3d 926 , ¶ 17 (8th Dist.).

{¶12} Also,

"'[t]he discretion that the juvenile court enjoys in deciding whether an order of permanent custody is in the best interest of a child should be accorded the utmost respect, given the nature of the proceeding and the impact the court's decision will have on the lives of the parties concerned."' In re L.O., 8th Dist. Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22, quoting In re Awkal, 95 Ohio App.3d at 316, 642 N.E.2d 424. We, therefore, review a trial court's determination of a child's best interest under R.C. 2151.414(D) for abuse of discretion. In re L.O. at ¶ 22. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

In re V.C., 8th Dist. Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52.

B. Law and Argument

{¶13} The appellant incorrectly argues that the trial court committed prejudicial error by considering the GAL's written report in reaching its decision to grant permanent custody of A.K. and K.K. to CCDCFS.

The role of a guardian ad litem in a permanent custody proceeding is to protect the child's interest, to ensure that the child's interests are represented throughout the proceedings and to assist the trial court in its determination of what is in the child's best interest. See, e.g., In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, citing R.C. 2151.281(B) and Sup.R. 48(B)(1). This is accomplished by the guardian ad litem conducting an investigation of the child's situation and then making recommendations to the court as to what the guardian ad litem believes would be in the child's best interest. In re J.C., 4th Dist. Adams No. 07CA833, 2007-Ohio-3781, ¶ 13.

In re M.S.,...