In re A.B.
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[Cite as In re A.B., 2021-Ohio-4134.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA IN RE A.B., ET AL. : Minor Children : [Appeal by S.F.] : No. 110292 JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 18, 2021 Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-15901515, AD-15901516, AD-15901517, AD-15901518, AD-15901519, and AD-15901520 Appearances: Wargo Law, LLC, and Leslie E. Wargo, for appellant. Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee. SEAN C. GALLAGHER, P.J.: Appellant, S.F. (“Mother”), appeals the decisions of the Juvenile Division of the Cuyahoga County Court of Common Pleas (“juvenile court”) that granted legal custody of two of her children (Ti.B. and Ta.B.) to relatives and four of her children (An.B., Ar.B., D.B., and J.F.) to an interested individual who is the children’s foster parent. Upon review, we affirm the decisions of the juvenile court. Background In February 2015, the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the agency”) filed a complaint seeking temporary custody of seven of Mother’s children. Two of those children were adjudicated abused, and all seven children were adjudicated neglected. Mother admitted the allegations of an amended complaint, which included allegations pertaining to Mother leaving two of the children alone overnight without parental supervision and failing to ensure her children regularly attended school. In May 2015, the children were committed to the temporary custody of CCDCFS. In December 2018, the juvenile court granted motions of CCDCFS to modify temporary custody to permanent custody of the children. In July 2019, the juvenile court’s decision to award permanent custody of the children to CCDCFS and terminate Mother’s parental rights was reversed by this court in In re D.F., 2019-Ohio-3046, 140 N.E.3d 1081, ¶ 56 (8th Dist.). In a split decision, it was determined that these are not children with severe disabilities; that there was little evidence as to how the children’s “special needs” impacted their ability to be in the community; that the criticisms of Mother’s parenting did not support a finding that termination of her parental rights was in the best interest of the children; that Mother had completed the programming required of her; and that this was “not a case in which the ‘remedy of last resort’ * * * has been shown * * * to be in the best interest of these children.” Id. at ¶ 48-56. Upon reversal of the permanent-custody decision, the case was remanded to the juvenile court for further proceedings. Id. at ¶ 57. Following remand, CCDCFS filed motions to modify temporary custody to legal custody of six of Mother’s children to their long-term caregivers. The six minor children include two girls and four boys. None of the fathers participated in case plan services, and they were not otherwise involved in the proceedings. At the time of the lower court’s hearing, Mother had a total of ten children, four of whom are not involved in this appeal.1 In February 2020, a hearing was conducted before a court magistrate. The social worker on the case testified to the issues that caused the six children to be committed to the temporary custody of CCDCFS, as well as to issues that arose during the pendency of the case, which raised concerns over Mother’s parenting and supervision of the children. The social worker testified that the amended case plan only included parenting services. Mother was referred to a supportive visitation program three times. Although Mother completed the program, she did not take advantage of or follow through with the community resources that were available to her. 1 One of the older children who was involved in the prior appeal was returned to Mother’s custody because of her age and not having the same level of cognitive or developmental delays as the other six children who are involved in this appeal. Mother also has three younger children who were born after the agency filed its complaint and who have never been involved in this matter. Although none of the six children suffer from severe disabilities, they all have special educational, behavioral, and/or emotional needs. The record reflects four of the children have individualized education plans (“IEPs”) and all six children have mental health providers. The juvenile court made specific findings regarding the needs of the children. Most of the children have special education needs, and the issues among the children were found to include, but are not limited to, the following: low IQs and low cognitive functioning, significant cognitive delays, and self-contained classes in school. Some of the children need assistance with selfcare and hygiene. Several receive counseling services. One of the children has threatened self-harm. One has behavioral issues that include sexually acting out and aggressive behaviors. Despite being provided with documentation regarding the children’s issues, including evaluation team reports and IEPs, Mother failed to demonstrate an understanding of their needs or a willingness to fully accept the level of parental responsibility that their needs require. Mother did not feel the educational and developmental issues of her children impacted them. The social worker testified that “[Mother] feels that they’re just common-sense delays, not delays that impact their functioning.” The agency had concerns that if Mother was not taking her children’s needs seriously, she would not follow through with addressing their needs. Despite being given contact information, Mother failed to contact school counselors, teachers, or other individuals at the children’s schools. The social worker indicated that “[Mother] didn’t feel that it would be beneficial, it wasn’t necessary.” Mother also failed to attend teacher conferences and failed to attend IEP meetings. The social worker expressed that Mother “doesn’t take their special needs seriously, doesn’t see the need for supervision, and doesn’t make plans based on their developmental delays.” When asked why Mother could care for her four other children and not the six children involved in this case, the social worker responded that the other children did not have the same level of needs and emphasized the number of appointments the six children attend and the many professionals they work with to address their needs. The testimony and evidence also demonstrate the behavioral issues of the children. Two of the children attend Bellefaire to address their behavior problems. One of the children was sexually acting out and was described as “very aggressive” toward the other children. He also has talked about killing and raping, he held a pair of scissors to his neck, and he was suspended from school for trying to stab a teacher with a pencil. During a staffing meeting, it was brought to Mother’s attention that this child was exposing himself to others, but Mother did not see any problem with his behavior. Mother did not wish to address the issue and expressed to the social worker in a follow-up discussion that there was nothing wrong with her child. Another of the children has oppositional defiant disorder and is aggressive, easily frustrated, and irritated. She has trouble at school, does not follow directions, and was suspended for fighting with others. The social worker testified that during the staffing meeting, Mother did not wish to talk about the needs of the children and would not listen to anyone. The children were were doing very well in their current placements, where they have been for a long time. The children are attending school and receiving the services they need. The four boys are in a specialized foster home, and the two girls are placed in relatives’ care. At the time of the February 2020 hearing, the children had been in the temporary custody of CCDCFS for almost five years. Mother consistently visited with the children during that time, and the children were bonded with Mother and with each other. The social worker testified that during visits with Mother “everything seems to be okay * * * [t]he siblings seem to enjoy each other’s company and are very bonded with each other * * *.” However, the social worker observed the children were mostly watching television or were on their electronics. The agency had no objection to continuing Mother’s visitation plan with the children if its motions for legal custody were granted. The foster mother to the four boys, who is a certified foster parent, testified to having a regular routine for the children and to having a good relationship with the children within her home. She testified that if legal custody were awarded, she would continue to ensure regular visitation occurred with Mother. The foster mother stated that three of the boys had expressed their desire to go home to their mother, with reasons varying from having no rules in Mother’s house to wanting to be together with their other siblings. The foster mother testified to the progress the boys had made academically since being in the foster home. The foster mother has attended many school appointments and teacher conferences, and often communicates with the teachers. The last IEP appointment that the foster mother was aware of Mother attending was three years ago. The matter was set for further hearing by the court. The court ordered Mother was to have overnight visitation every weekend during this time. The court also ordered Mother to schedule and attend a parent-teacher conference for each of the six children and to meet with the counselors for two of the children before the next hearing. Mother complied with this order in most instances. However, during visitation and in the absence of any order, Mother failed to ensure all scheduled counseling sessions were attended, even though the sessions were held electronically. Mother also failed to appear at a staffing meeting scheduled to discuss the possibility of returning the children to Mother’s care and custody. The next hearing was held in September 2020. The social worker testified that Mother had overnight visits with the children and had some extended visits with the two girls. During this time, Mother lied about having symptoms of the coronavirus in an effort to keep the two girls longer. There also were concerns about Mother’s allowing the girls to stay up all night and sleep all day. As found by the juvenile court, “Mother has provided minimal structure and discipline during the visitations” and “failed to ensure [her children] attended all scheduled counseling sessions.” There were concerns with one of the girls missing counseling because she was not addressing her depression. When her counseling began she “was talking about being suicidal” and “was very unhappy * * *.” The agency also expressed concerns about the support and structure needed for the girls’ schoolwork and the extra help three of the boys required for school. A second staffing meeting was held at which Mother was not able to discuss the girls’ needs and “really didn’t listen.” Mother did not know what was included on her daughter’s IEP, and Mother did not know the name of her other daughter’s counselor or why she was in counseling. Mother revealed that the child with sexual behaviors had disclosed past sexual abuse, but she refused to provide many details. Mother also relayed concerns about this child acting inappropriately with a younger sibling. Mother was unaware that he got a pair of scissors and cut his hair unsupervised. Mother did not understand the concern or that this child needs supervision because of his behavior problems. Mother was unable to set forth a plan for meeting all her children’s needs. The social worker testified she believed if all six children were returned to Mother’s care, Mother “would be overwhelmed with their special needs, with their education and providing for them, and that she wouldn’t be able to manage.” The guardian ad litem (“GAL”) for the children testified that although he initially recommended returning three of the children to Mother’s care, he changed his recommendation and believed all six children should remain in their current placements with visitation provided to Mother. The GAL testified that he wanted Mother to succeed, but Mother had not demonstrated parental insight into the children’s issues or the ability to meet their needs. The GAL stated that “[Mother] has not demonstrated the ability to follow through with even the simple things such as having the kids attend their therapy sessions.” Also, “[M]other didn’t know what any of the kids’ IEPs were for” and “it just didn’t seem that mom had the wherewithal or the initiative to do anything further on her own.” The GAL acknowledged the need to weigh the children’s emotions and their desire to be with their Mother against the need for proper care. However, as stated by the GAL, “[b]ased on [Mother’s] past actions, if she hasn’t been able to attend a phone session or a therapy session and she hasn’t been able to take [her son to therapy], these are tasks far less demanding than making sure your kids follow through with [their] schooling.” The GAL recommended legal custody be awarded to the current caretakers. Following the hearing, the magistrate issued decisions granting the agency’s motions for legal custody. The juvenile court overruled Mother’s objections and approved and adopted the magistrate’s decisions. The court also ordered that Mother have reasonable parenting time, with a liberal visitation schedule set forth in the order. This appeal followed. Law and Analysis Mother raises three assignments of error for our review. Under her first assignment of error, Mother claims the juvenile court erred in failing to uphold and abide by the decision in the prior appeal. She argues that the law-of-the-case doctrine should be applied to require the children to be reunited with Mother. Mother also claims that the doctrines of res judicata and collateral estoppel should apply to preclude CCDCFS from litigating the issues raised by CCDCFS. The law-of-the-case doctrine provides that “the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984). The law-of-the-case doctrine is rooted in principles of res judicata and issue preclusion. Washington Mut. Bank, F.A. v. Wallace, 2014-Ohio-5317, 24 N.E.3d 779, ¶ 20 (12th Dist.), citing State ex rel. Union Twp. v. Union Twp. Professional Firefighters, IAFF Loc. 3412, 12th Dist. Clermont No. CA2013-08-064, 2014-Ohio-1582, ¶ 14. Generally, “principles of res judicata do not apply to decisions in dispositional hearings because the court retains continuing jurisdiction.” In re K.G., 8th Dist. Cuyahoga Nos. 100782 and 100843, 2014-Ohio-3461, ¶ 18, citing In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 24; see also In re Ament, 142 Ohio App.3d 302, 310, 755 N.E.2d 448 (12th Dist.2001). We recognized, as reflected in the authority cited by Mother, that the law-of-the-case doctrine has been applied to parental rights cases in limited circumstances. In In re B.J., 1st Dist. Hamilton No. C-081261, 2009-Ohio-6485, the parents sought to regain custody of their son, and the law-of-the-case doctrine was applied to prevent a juvenile court on remand from rendering “on the same record” a finding contrary to a determination in a prior appeal that no change in the circumstances of a child occurred. Id. at paragraph two of the syllabus. However, the court remanded the case for the juvenile court’s consideration of the parents’ supplemental motion to modify the prior custody order, which asked the court to receive new evidence. Id. at ¶ 1, 12. In In re A.I., 8th Dist. Cuyahoga No. 99808, 2014-Ohio-2259, the law-of-the-case doctrine was applied when, after an order that granted legal custody of children to their mother was affirmed on appeal, the father filed successive motions in the trial court in which he merely reargued issues already determined on appeal in an attempt to circumvent the legal-custody award. Id. at ¶ 35-36. Unlike the cases cited by Mother, this case involves the disposition of legal custody rendered after a disposition of permanent custody was reversed on appeal. Permanent custody and legal custody are two distinct dispositions. In re Reeher, 7th Dist. Belmont No. 02-BE-38, 2003-Ohio-3470, ¶ 17. Upon remand, the factual record continued to develop. Moreover, because the juvenile court is vested with continuing jurisdiction to review and, if necessary, modify its dispositional orders, generally, “res judicata will not prohibit the court from revisiting issues that are relevant to a motion for custody — legal or permanent — even if the same or similar issues may have been considered in a prior action falling within the purview of R.C. Chapter 2151.” In re K.G. at ¶ 18 (citations omitted); see also In re J.G.S., 1st Dist. Hamilton Nos. C-180611 and C-180619, 2019-Ohio-802, ¶ 26; In re Ament at 310. The decision in the prior appeal considered the factual evidence at that time relative to the juvenile court’s determination that an award of permanent custody to CCDCFS was in the best interest of the children. In re D.F., 2019-Ohio3046, 140 N.E.3d 1081, at ¶ 56. In the context of evaluating permanent custody, which results in the termination of Mother’s parental rights, the lead opinion commented that Mother, who participated in case plan services, “has done all the work to have her children returned to her. This family should be together.” Id. at ¶ 55. Ultimately, it was concluded that “[t]his is not a case in which the ‘remedy of last resort’ — termination of Mother’s parental rights and granting permanent custody to CCDCFS — has been shown * * * to be in the best interest of these children.” Id. at ¶ 56. As a result, the decision of the juvenile court to modify temporary custody to permanent custody was reversed and the case was remanded for further proceedings. In re D.F. at ¶ 57. Upon remand, the juvenile court complied with the mandate to conduct further proceedings in the matter. Consistent with the court’s continuing jurisdiction over the children, they remained in the temporary custody of CCDCFS. During the proceedings, the children stayed in their existing placements, while Mother retained her parental rights and continued to have visitation with all of her children. R.C. 2151.353(F)(1) provides that the juvenile court “shall retain jurisdiction over any child for whom the court issues an order of disposition pursuant to division (A) of this section * * * until the child reaches the age of eighteen years * * *,” with certain limited exceptions. The children were committed to the temporary custody of CCDCFS pursuant to R.C. 2151.353(A)(2), and the reversal of the permanent custody decision did not terminate temporary custody in this matter. The juvenile court had continuing jurisdiction to render a disposition for legal custody of the children and was required to revisit the best interest of the children when considering this disposition. The juvenile court needed to consider all relevant factors and the totality of the circumstances involved. Accordingly, we conclude neither res judicata, collateral estoppel, nor the law of the case precluded the juvenile court from rendering a disposition of legal custody and granting the motions of CCDCFS. Mother’s first assignment of error is overruled. Under her second assignment of error, Mother claims the juvenile court erred in granting the motions for legal custody of CCDCFS and in denying Mother’s motions for legal custody. Pursuant to R.C. 2151.353(A)(3), a juvenile court may award legal custody of a child who has been adjudicated abused, neglected, or dependent “to either parent or to any other person who, prior to the dispositional hearing, files a motion requesting legal custody of the child or is identified as a proposed legal custodian in a complaint or motion filed prior to the dispositional hearing by any party to the proceedings.” “Legal custody” is defined as a legal status that vests in the custodian the right to have physical care and control of the child and to determine where and with whom the child shall live, and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, education, and medical care, all subject to any residual parental rights, privileges, and responsibilities. R.C. 2151.011(B)(21). “Unlike permanent custody that divests the natural parents of all parental rights, legal custody vests in the custodian the physical care and control of the child while the natural parents retain residual parental rights, privileges, and responsibilities.” In re E.M.B.T., 8th Dist. Cuyahoga No. 109479, 2020-Ohio-4308, ¶ 24, citing R.C. 2151.011(B)(31), 2151.011(B)(21), and 2151.353(A)(3)(c). Also, “‘[u]nlike permanent custody, granting legal custody does not terminate the parentchild relationship.’” Id., quoting In re M.M., 12th Dist. Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7. Further, an award of legal custody does not permanently foreclose the right of either parent to regain custody in accordance with the law. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 23, citing R.C. 2151.42. It is well recognized that parents have a fundamental liberty interest in the care, custody, and control of their children. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19-20, citing Troxel v. Granville, 53 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). However, that interest is always subject to the ultimate welfare of the child. Id. at ¶ 20, citing In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979). Following an adjudication of abuse, neglect, or dependency, a juvenile court may award legal custody of a child to an individual if the court finds that legal custody is in the best interest of the child as supported by a preponderance of the evidence. In re D.S., 8th Dist. Cuyahoga No. 106557, 2018Ohio-3794, ¶ 20, citing In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-4177, ¶ 44. A “preponderance of the evidence” is “‘evidence that is more probable, more persuasive, or of greater probative value.’” Id., quoting In re C.V.M., 8th Dist. Cuyahoga No. 98340, 2012-Ohio-5514, ¶ 7. “[T]he best interests of the child are paramount in any custody case,” and courts are to liberally interpret the statutes under R.C. Chapter 2151 “to provide for the care and protection of the child * * *.” In re A.B., 110 Ohio St.3d 230, 2006Ohio-4359, 852 N.E.2d 1187, ¶ 32, citing R.C. 2151.01(A). The factors listed under R.C. 2151.414(D) may be instructive when determining the child’s best interest in a legal custody case. In re D.S. at ¶ 20, citing In re T.R. at ¶ 48. Those factors include the following: the interaction and interrelationship of the child with the child’s parents, relatives, and caregivers; the wishes of the child; the custodial history of the child; and the child’s need for a legally secure placement. R.C. 2151.414(D). In custody matters, a juvenile court has broad discretion in making dispositional orders in the best interest of the child. See Reynolds v. Goll, 75 Ohio St.3d 121, 124125, 661 N.E.2d 1008 (1996). The juvenile court’s decision reflects that it considered relevant factors in determining the best interest of the children. The juvenile court recognized visitations with Mother occurred and considered the wishes of the children.2 The record reflects that several of the children expressed a desire to return to Mother’s care and to be together with all of their siblings. There is no 2 The juvenile court expressed that it had conducted two in camera interviews with the children during the pendency of the case and was aware of their wishes. question that the children love their mother and are bonded with her and each other. Also, it appears from the record that Mother is able to provide for the basic needs of the children. However, the primary concerns that existed throughout the pendency of the case were Mother’s parenting skills and parental judgment. Although Mother participated in case plan services, this is not dispositive of whether it is in the children’s best interest to be returned to her custody. See In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604, ¶ 19. Despite Mother’s having participated in parenting education programs, it did not appear she benefited from the services. The record reflects that Mother repeatedly demonstrated an unwillingness to address the educational, behavioral, and/or emotional needs of the six children. The juvenile court recognized the issues of the children, which depending on the child, include, but are not limited to, low IQ and cognitive delays, needing assistance with self-care and hygiene, sexually acting out, aggressive behaviors, and threatening self-harm. Despite the documented need for extra assistance, Mother was not willing to fully accept the level of parental responsibility and supervision that her children’s needs require, and she failed to follow through with addressing their needs. Mother failed to contact the children’s school teachers and counselors until ordered to contact them; she was uninformed regarding her children’s IEPs; she was unaware of certain behavioral issues; she was not concerned by sexual behaviors; she provided her children with little structure in the home and allowed them to miss counseling sessions; she was not willing to listen at staff hearings and did not understand the concerns raised; and she was not able to provide a plan for the care of all her children. The juvenile court also considered the lengthy period of time the children have been in the agency’s custody. The juvenile court found the children’s educational needs were being met in their current placements. The juvenile court considered that the GAL recommended all six children be committed to the legal custody of their current caretakers. The GAL expressed his concern that despite being given ample opportunity, Mother had not demonstrated parental insight into the children’s educational and emotional issues or the ability to meet her children’s special needs. There is no question each of the six children deserves to be in a legally secure placement where his or her individual needs can be met. In each child’s case, the juvenile court considered the totality of the circumstances and determined by a preponderance of the evidence that a disposition of legal custody to the current caretaker is in the best interest of each child. With a disposition of legal custody, Mother retains her residual parental rights, which the juvenile court recognized when it ordered reasonable visitation to Mother. Our review reflects the juvenile court acted within its discretion in rendering the disposition of legal custody for each child and that the court’s decisions are not against the manifest weight of the evidence. The second assignment of error is overruled. Under her third assignment of error, Mother claims the juvenile court abused its discretion in admitting certain evidence at the dispositional hearing and considering this evidence in rendering its disposition for legal custody. Mother argues that the juvenile court improperly permitted testimony about events occurring prior to the reversal of the permanent-custody decision, considered improper hearsay and permitted the social worker to testify that Mother did not benefit from supportive visitation, and permitted the social worker to testify about evaluation testing results (“ETRs”) and procedures. Generally, at a dispositional hearing, “the court may admit evidence that is material and relevant, including, but not limited to, hearsay, opinion, and documentary evidence[.]” Juv.R. 34(B)(2); R.C. 2151.35(B)(2). Further, the court has broad discretion in admitting or excluding evidence, and absent an abuse of discretion and a showing of material prejudice, a trial court’s ruling on the admissibility of evidence will be upheld. In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-Ohio-4064, ¶ 13, citing In re J.T., 8th Dist. Cuyahoga Nos. 93240 and 93241, 2009-Ohio-6224, ¶ 67. In this case, the juvenile court was permitted to consider all material and relevant evidence in rendering its disposition. Additionally, the record shows that the juvenile court sustained objections to testimony regarding the ETRs and limited the testimony of the social worker in this respect. The juvenile court judge is presumed to be able to disregard improper testimony. Id. at ¶ 17, citing In re J.T. at ¶ 70. Nothing in the record shows that the juvenile court relied on improper evidence. We find no abuse of discretion occurred and no material prejudice has been shown. Accordingly, we overrule the third assignment of error. We are not persuaded by any other arguments raised. The decisions of the juvenile court are 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. _______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE LISA B. FORBES, J., and EMANUELLA D. GROVES, J., CONCUR
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