In re J.J.
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[Cite as In re J.J., 2021-Ohio-2594.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA IN RE J.J., ET AL. Minor Children [Appeal by S.J., Mother] : : : : : No. 110364 JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 29, 2021 Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19906823 and AD-19906824 Appearances: Patrick S. Lavelle, for appellant. Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee. LISA B. FORBES, J.: S.J. (“Mother”) appeals the juvenile court’s decision to terminate her parental rights and award permanent custody of her children J.J. and J.R. (“the children”) to the Cuyahoga County Division of Children and Family Services (“CCDCFS”). Mother argues that the court’s decision “violated state law” and her constitutional rights 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 May 31, 2019, the court granted emergency temporary custody of the children to CCDCFS after finding that J.J. was hospitalized for failure to thrive. In its decision, the court found as follows: Mother fails to appreciate the seriousness of [J.J.’s] medical conditions and has refused to cooperate with the hospital to learn how to treat and manage the child’s medical condition. She is threatening to remove the child from the hospital against medical advice. Mother has also failed to take J.R. to the doctor. Mother appears to have cognitive delays that inhibit her ability to meet the children’s basic and medical needs. Mother engages in physical altercations with other adults in the presence of the children. Alleged father of J.R. * * * is not consistently involved in the child’s life. Mother was unable to provide any details regarding the alleged father of J.J. except a nickname. The children were placed “with [separate] foster parents, who are family members to each other,” which “allows for the [children] to see each other regularly.” At that time, J.J. was approximately nine months old and J.R. was approximately 19 months old. J.J. was born prematurely, spent time in a neonatal intensive care unit upon his birth, and suffers from developmental delays. J.J. is in a “certified therapeutic and treatment foster home” due to his special medical needs. On June 3, 2019, CCDCFS filed a complaint alleging that the children were neglected. The court held a hearing and granted predispositional temporary custody to CCDCFS that same month. In July 2019, CCDCFS filed a case plan for Mother, which included: a mental-health evaluation and “treatment recommendations,” if any; take all medications, if recommended; “become emotionally stable and healthy”; “establish and maintain stable, safe, and appropriate housing” for at least six months; “ensure that all of the children’s basic needs * * * are met on a regular basis”; and “ensure that [the children] receive medical treatment as necessary.” The case plan also directed Mother to visit the children at a “neutral off-site location” for two hours each week. The court held an adjudicatory hearing on the complaint at which Mother stipulated to the allegations as written. On October 4, 2019, the court adjudicated the children neglected and granted temporary custody to CCDCFS. On May 15, 2020, CCDCFS moved for permanent custody of the children. On October 12, 2020, Mother gave birth to another child, P.D., who was placed in the emergency custody of L.D. (P.D.’s alleged father) upon her birth and discharge from the hospital. On January 11, 2021, CCDCFS updated Mother’s case plan to include “developmental services” for her “to address concerns regarding her cognitive abilities.” This update noted that Mother did not have mental-health concerns, as previously thought, “but rather cognitive concerns.” The court held hearings on the permanent custody motion in January and February 2021. On February 17, 2021, the court terminated Mother’s parental rights and placed the children in the permanent custody of CCDCFS. It is from this order that Mother appeals. II. Hearing Testimony Samona Johnson (“Johnson”) testified that she is a Nurturing Parenting Facilitator with Ohio Guidestone. Her job duties include trying “to give [parents] new techniques and educational tools to redirect or advance their parenting skills.” Johnson worked with Mother in this capacity from July 2020 to January 2021, although because of Covid-19, she only met with Mother in person once. The remainder of their sessions were conducted via video. As part of the program, Johnson gave Mother the “Easy Reader” version of the program’s book, because Mother “wasn’t picking up what I was doing and she couldn’t read” the standard book. Ultimately, Johnson had to read the material to Mother. Johnson testified that Mother interacted with her at their in-person session and “[f]rom where she started, she improved.” Mother’s “scores were very high where she did show advancement and improvement, which means she was understanding the information,” although Johnson could not opine on whether Mother would be able to apply the techniques. Johnson recommended that Mother participate in assistance and support groups “to help her self-esteem.” According to Johnson, she had concerns about Mother engaging in the programs. “She would have outbursts and crying just saying she just wants her kids back, or I felt like she wasn’t engaging. I would end the session and reschedule it.” Asked to give an example, Johnson described one incident that she observed via video: “Well, one particular [session], she was feeding the baby [P.D.] [a]nd after she put the baby down, she just wasn’t responding to me or engaging, and you know when someone’s engaging and responding, so I just cancelled the session and rescheduled.” Johnson testified that she asked Mother why the children were taken away from her. Mother’s response was, “It wasn’t her fault. She said the baby [J.J.] got sick, and the 2-year-old [J.R.] got sick out of her care. [J.J.] wasn’t with her when he got sick, so it wasn’t her fault.” Johnson never saw Mother interact with the children, other than with P.D. According to Johnson, Mother “genuinely does love her kids,” but she does not have the “support system in place, * * * the support of a daily operation, what a daily schedule, a daily household would be.” Johnson testified that Mother may be able to “translate what she learned into daily life, * * * [b]ut she’s gonna need some help” to parent three children. Johnson testified that Mother completed the program. Natashia Jackson (“Jackson”) testified that she is the foster mother for J.J. and has been since June 6, 2019. Jackson has a “therapeutic foster home,” which is specialized to “deal with children that are more involved with like disabilities, behaviors, things like that.” When she received J.J., he looked like a “newborn, underweight,” and he weighed ten pounds although he was nine months old. “I had to basically train him to eat and we had to do that by waking him up every two hours to basically force-feed him so that he could get back into the routine of getting his nutrition that he needs.” J.J. requires physical therapy and occupational therapy, which started at twice a week for the first year and decreased to twice a month in June 2020. J.J. is developmentally delayed, has issues with his muscle tone, suffers from “tremors,” drags his foot because his hip is out of line, and is in speech therapy. According to Jackson, Mother was informed of J.J.’s therapy sessions, but she did not appear at any of them for the first year. Mother appeared at one of J.J.’s appointments in June 2020, and has been attending them regularly ever since. Asked what Jackson observed about Mother at J.J.’s appointments, Jackson testified as follows: That like she really don’t engage. She just sits there and watch. So I try to do things like get up and answer my phone just so like maybe it’ll make her feel comfortable and she’ll engage more, but she don’t. Or like I’ll celebrate hoping that she will follow suit like when he does something the therapist does, but she just is like — she just sit there. *** There is no relationship. Like he kind of shuts down when he sees her. He doesn’t respond. It’s like when she’s there, if I get up, he’s looking for me. He just shuts down until I’m back or he knows that I’m not going nowhere. Jackson testified that J.R.’s foster parents are Jackson’s aunt and uncle, “so we always see each other.” Jamessa Motely (“Motley”) testified that she is a service worker at CCDCFS. Her job duties include “the follow-ups for services, case management services for parents and children involved with [CCDCFS].” She became involved with J.J. and J.R.’s case in July 2019, because of “a number of concerns, especially with regards to [J.J.] and his care, which led to the removal and services needed to be put in place for mother.” When Motley began working on this case, she “was unsuccessful in making contact with [Mother] for several months.” When Motley connected with Mother, she explained the case plan objectives and the services that were put in place to address these objectives, starting with a mental-health evaluation. Asked why this was the starting point, Motley testified as follows: So for mother to not feed the child, this child was diagnosed nonorganic failure to thrive and his weight was significantly low, and with the circumstances leading to our involvement it made us question whether there was mental health or whether there was something else going on which led her to A, not appropriately feed this child, especially knowing that he was premature, as well as B, try to remove him from the hospital against medical advice. So we needed to get to the root of what was going on with her to lead to her actions in the first place. According to Motley, nonorganic failure to thrive is when the “child is not thriving like he should be and there’s no medical reason as to why. It is strictly based on the fact that he’s not being appropriately cared for.” Motley testified that other case plan services included “the need for [Mother] to attend the medical appointments for [J.J.], the physical therapy and occupational therapy at the time that was going on.” Motley texted, to what she understood was a working phone number for Mother, all the pertinent appointment information. Motley did not testify as to whether Mother attended any of the appointments. The next time Motley saw Mother was at the temporary custody hearing in October 2019. Initially she was not present at the beginning of the hearing. She signed in when she arrived at Court and unfortunately, when the hearing started she was not present. I did reach out to her at some point in time and contacted her and she stated that she was headed home, she was tired of waiting, and I explained that we needed her present, so she did come back. She arrived late during the Court hearing. Motley testified that attempts to set visitation between Mother and the children were unsuccessful, in that CCDCFS was “unable to get in contact with [Mother].” Mother “hadn’t been able to maintain stable housing for approximately a year. She was just residing with different relatives and friends during that period of time and no paternity had been established for either of the [children].” According to Motley, she next met with Mother in February 2020, and at that time, “none of the services had been able to be put in place because contact with mother had been so sporadic and inconsistent.” CCDCFS provided Mother with a supportive visitation coach and a nurturing parent coach “who could work with her with the fundamentals of parenting.” Implementation of these two programs was “kind of in limbo” during the COVID-19 pandemic, but “by July [2020] the visitation was in place * * *.” Mother attended regular weekly visitation sessions through December 2020. Motley testified that “the most concerning thing was really the lack of actual interaction. * * * [T]he big concern that has been consistent is the fact that she wasn’t talking to the [children], there was no communication. She wasn’t saying anything. The visits were silent.” Motley and the two parenting coaches encouraged Mother to interact with the children. According to Motley, the most interaction Mother had with the children was: “She got on the floor and she’d hand them toys. There was no talking. There was no singing, no talking. It’s just handing them toys.” By December 2020, COVID-19 caused visitation to occur via video. Motley testified that [t]he biggest concern that was reported to me by both the supportive visitation coach and the foster mom was that during the time of the scheduled visit, mom would bring her newborn into * * * the video visit, interact with the newborn during her time that she’s supposed to be interacting with [the children], and this was actually having a negative effect on [J.R.]. [J.R.] was visibly becoming upset by the fact that mom was paying attention to baby and interacting with the baby during their video calls. Motley testified that in March 2020, Mother allegedly obtained housing, although Mother did not provide a lease, and it was unclear who was living with her. Additionally, to Motley’s knowledge, Mother has never been employed. “We are unclear as to how she’s affording the apartment if she’s unemployed and we don’t know of any benefits that she’s receiving. * * * [Mother] said that her mom pays the rent.” Asked if there is any proof that Mother can provide the children with basic needs, Motley answered, “No.” Motley testified that in June 2020, Mother completed the psychological evaluation, which “ruled out” mental-health issues, but concluded “that she has cognitive delays. It was determined that her IQ is relatively low and that she was initially recommended for services through the Cuyahoga County Board of Developmental Disability.” Motley further explained that “the problem that I run into with that is the fact that I have no documentation that [Mother] was ever diagnosed by the Board prior to the age of 18, and so a referral cannot be done to them as she’s over the age of 18.” Motley testified that CCDCFS is “looking into opportunities for Ohioans With Disabilities, but we’re not even sure if that’s gonna be an appropriate service for her. * * * They could help her possibly with daily living skills, possibly finding employment, things of that nature.” Motley testified that paternity has not been established for the children, and nobody from Mother’s family is “supporting, visiting or communicating with these children.” Concerning whether Mother should have custody of the children, Motley testified as follows: There are still ongoing concerns about whether she really grasps the seriousness of the situation. She’s still denying that she had any involvement whatsoever in [J.J.’s] condition. She states that [J.J.] was with his father and when she got him back, he was sick so she took him to the hospital. This child was diagnosed non-organic failure to thrive. He wasn’t just missing one meal. He had been missing a lot of nutrition for an extended period of time for him to be in the condition that he was in when he was admitted to the hospital. He was completely lethargic and was not responding. He was not stable when they got him at the hospital. This kid had not been taken care of in any way, shape, or form. He didn’t have muscle tone. He couldn’t hold his head up. He wasn’t rolling over. This child was severely neglected and she completely minimizes the whole situation. She continues to blame the alleged father that we don’t even know had any interaction to begin with this child. Then there is the concern that even during the visitation there’s still minimal interaction with this particular child. There doesn’t seem to be a bond between them. They’re not improving. It’s just they’re there together. She interacts with the baby. She interacts with [J.R.], but she doesn’t interact with [J.J.] in any way. According to Motley, J.R. is “very bonded” with his foster parents. “He interacts very well with them. He’s thriving. He’s happy, healthy.” J.R. has no special needs. Additionally, J.J. is making “significant strides” with his foster mother. When I first saw this child, the first time I saw him she propped him up on a couch with pillows around him and he still couldn’t even hold himself up with the pillows surrounding him. He was literally just falling over. He’s now walking, talking. He does walk with a slight limp at times because he drags his leg, and he[’s] walking, he’s talking, he’s interacting with the other kids. He’s doing amazing. *** At this time we do not feel that mom is able to adequately meet their needs and we feel that permanent custody is in the best interest of both children. According to Motley, J.R. “just wasn’t as severely neglected” as J.J. Both foster parents want to adopt the children. Motley testified that Mother completed the nurturing parenting program in January 2021, and as of the February 10, 2021 hearing, Mother was still enrolled in the supportive visitation program. Motley testified that “I don’t know that she’s fully engaged, but she’s regularly participating.” Mother’s cognitive disabilities concern Motley. She is reportedly reading on kindergarten level. Her skills have been assessed I believe third grade and lower in all areas, and I know just in my interaction with her there’s been times where appointments have been scheduled at a certain time, the information has been texted to her and she hasn’t followed through and she’s literally become irate because she insists that that was not what was told to her, and I’m like, it’s in black and white. We had an appointment scheduled. This is when it was scheduled for, and you failed to follow through. That’s a concern because if you’re not gonna follow through appropriately with me, what do I have to ensure that you’re gonna follow through appropriately for these children? The guardian ad litem (“GAL”), Wildon Ellison, testified as follows about his recommendation in this case: This is a really tough one. Mother seems to be complying, doing what she’s supposed to be doing, but I don’t know if anything’s gonna chan[g]e by giving mother more time. I have the low IQ, the cognitive delays. She has [L.D.] for baby [P.D.], but three children, I don’t know if she could really handle it. And the previous trying to take the child out of the hospital. She brought the child to the hospital and against medical advice she tried to take the child out. She said the child was with the father, but * * * she really knew both fathers were no good because they drank, they both drank a lot, so then why was the child with the father, and that was his fault that the child was in such bad shape. And then she acknowledged that and said, well, okay, if that was the case, then she tried to take the child out of the hospital. I worry about the judgment. I worry about [Mother] trying to raise three children. You know, what if the child needs something and she’s not able to meet those needs and they’re of an emergency nature? I’m just having a real problem that I’m not seeing any change. I mean, you know, they’re saying there was a problem with contact in visitation, but at this point I would think it’s in the child’s best interest that permanent custody be granted. According to Mother’s June 23, 2020 psychological evaluation, which was admitted into evidence at the permanent custody hearing, Mother is “functionally illiterate and may require assistance in reading mail, paying bills, managing funds, and other necessary adult activities.” Her I.Q. score was 61, which is “consistent with the Extremely Low range, which is at the * * * .5th percentile for individuals in her age range.” Mother has no mental-health issues other than “cognitive impairments that could significantly interfere with her ability to function optimally in the community and parent her children.” III. Law and Analysis A. Mother’s First Assignment of Error In her first assignment of error, Mother argues that the court failed to make findings concerning whether CCDCFS “made reasonable efforts to eliminate the continued removal of the children from their home and to return the children to their home * * *.” According to Mother, these findings are required by R.C. 2151.419, and the court’s failure to follow this requirement violated his right to due process of law. We disagree. This court has consistently held that R.C. 2151.419 does not apply to permanent custody determinations. See, e.g., In re K., 8th Dist. Cuyahoga No. 83410, 2004-Ohio-4629, ¶ 21; In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007Ohio-827, ¶ 49 (“the motion for permanent custody was filed [by the agency]; therefore, a reasonable efforts determination is not required”). In fact, Mother concedes in her appellate brief “that existing precedent in this appellate district provides that such findings are not required in permanent custody cases.” Nevertheless, Mother urges this court to construe R.C. 2151.419 to require the trial court to make this determination. Upon review, and following this court’s precedent, we conclude that R.C. 2151.419 does not apply to the case at hand. Furthermore, we note that in the juvenile court’s order granting permanent custody of the children to CCDCFS, the court found that “reasonable efforts were made to prevent the removal of the child[ren] from the home, or to return the child[ren] to the home * * *.” Additionally, the evidence in the record supports this finding. B. Mother’s Second Assignment of Error — Standard of Review in Permanent Custody Cases “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., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24. “Courts apply a two-pronged test when ruling on permanent custody motions. 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 the agency is in the best interest of the child or children using the factors in R.C. 2151.414(D).” In re De.D., 8th Dist. Cuyahoga No. 108760, 2020-Ohio-906, ¶ 16. 1. R.C. 2151.414(B)(1) Factors In the February 17, 2021, journal entries terminating Mother’s parental rights and awarding permanent custody of the children to CCDCFS, the court made the following findings. Pursuant to R.C. 2151.414(B)(1)(a), the court found that the children have not been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period prior to the filing of the motion for permanent custody and “the [children] cannot be placed with either of the [children’s] parents within a reasonable time or should not be placed with the child’s parents.” The court found that returning the children to Mother “would be contrary to [their] best interest” and that CCDCFS made “reasonable efforts * * * to return the [children] to the home and finalize a permanency plan” by providing the following relevant services to the family: “Housing/Basic Needs, Parenting, Mental Health/Psychological Evaluation for Mother.” 2. R.C. 2151.414(D)(1) Best-Interest Factors Also in the February 17, 2021, journal entry, the court considered several best-interest factors under R.C. 2151.414(D)(1) as follows. Under subsection (a), which concerns the relationship of the children with their family and foster caregivers, the court found: “Child[ren are] very bonded with caregiver and [are] thriving in caregivers[’] home.” Additionally, the court found that [J.R.] and Mother interact and have visits, but [J.R.] is sometimes negatively affected when Mother is spending time with and paying attention to her newborn during her visits with the children.” With regard to J.J., the court found that “[a]ccording to testimony, mother does not interact with [J.J.] and [J.J.] shuts down and doesn’t respond when Mother is around.” Under subsection (b), which concerns the wishes of the children, the court found: “Child[ren are] too young to express [their] wishes. GAL recommends permanent custody.” Under subsection (c), which concerns the custodial history of the child, the court found: “Child[ren have] been in Agency custody since June 2019.” Under subsection (d), which concerns the child’s need for a legally secure placement, the court found: Child[ren deserve] a safe and stable environment where all of [their] needs can be met and [they] can thrive. Child[ren were] not medically up to date when [they] came into Agency custody and [were] removed from Mother’s care. Mother failed to communicate with * * * child[ren] for 9 months and Mother has significant cognitive delays which could significantly interfere with her ability to parent. Alleged Father[s have] not established paternity or a relationship with the child[ren] and [have] not made [themselves] available to the Agency. Under subsection (e), which concerns whether any of the factors in R.C. 2151.414(E)(7) to (11) apply, the court found: “(E)(10) applies,” and this subsection states that “[t]he parent has abandoned the child[ren].” Next, the court found “by clear and convincing evidence that the child[ren] cannot be placed with one of the child[ren’s] parents within a reasonable time or should not be placed with either parent, pursuant to” R.C. 2151.414(E), based on the following factors. Under subsection (1), the court found: 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. Under subsection (4), the court found: “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.” Under subsection (10), which concerns whether the parent has abandoned the child, the court found: “Mother failed to communicate with the child[ren] for approximately 9 months. Alleged Father[s have] failed to establish paternity or communicate with the child[ren].” Under subsection (16), which concerns any other relevant factors, the court found: Mother was not present at trial on January 19, 2021. Mother has significant cognitive delays which, according to the testimony of Dr. Williams,[1] makes it very challenging for her to parent children/ could significantly interfere with her ability to parent. Additionally, Child[ren were] not medically up to date when [they were] removed from Mother’s care, Mother stipulated to the allegations in the underlying complaint as written, and [J.J.] was * * * severely emaciated, malnourished, and diagnosed with non-organic failure to thrive as a result of being in Mother’s care. The court concluded that “by clear and convincing evidence * * * a grant of Permanent Custody is in the best interest of the child[ren].” 1 We note that the transcript from the January 19, 2021 hearing, at which Dr. Williams testified, is not part of the record. All referenced testimony is from the February 10, 2021 hearing. Upon review, we find that the juvenile court’s judgment is supported by clear and convincing evidence in the record. The court’s findings under R.C. 2151.414(B)(1)(a) are supported by the fact that the children were first placed in emergency custody of CCDCFS on May 31, 2019, and CCDCFS filed its motion for permanent custody on May 15, 2020, which is slightly less than 12 months of a 22month consecutive period. Furthermore, the evidence in the record shows that CCDCFS outlined various case plan objectives for Mother, but she was unable to make substantial progress on them. For example, CCDCFS was unable to verify that she had stable housing, she was unable to provide for the children’s basic needs, and she did not demonstrate that she would ensure that their medical needs were met. Furthermore, the results of her psychological evaluation showed significant cognitive delays that would interfere with her ability to parent. Turning to R.C. 2151.414(D) and (E), we find that the juvenile court’s analysis of the relevant factors is likewise supported by clear and convincing evidence in the record. Mother failed to have any interaction with the children for the first nine months after they were removed from her care. Evidence in the record showed that she began visiting with them consistently, but she failed to engage with the children during the visits. Testimony was presented that the children are “thriving” in their foster homes. There is overwhelming evidence that Mother’s cognitive delays resulted in her not appreciating the severity of J.J.’s special needs and not being able to properly provide for the children’s basic needs. Specifically, Ellison, who is the children’s GAL, recommended permanent custody to CCDCFS, because he did not think Mother was able provide for the children. Motley, who is the CCDCFS case worker, recommended permanent custody to CCDCFS, because Mother is unable to provide for the children’s needs. Johnson, who is one of Mother’s parenting coaches, did not provide an ultimate opinion on custody, but testified that Mother would “need some help” to parent the children. All three of these witnesses testified about their concerns that Mother simply did not engage with the children. Jackson, who is J.J.’s foster parent, corroborated the testimony that Mother does not engage with J.J. Accordingly, we find the court acted within its discretion, as shown by clear and convincing evidence in the record, when it terminated Mother’s parental rights and granted custody of the children to CCDCFS. Mother’s two assignments of error are 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 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, JUDGE LARRY A. JONES, SR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR
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