In re A.R.

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[Cite as In re A.R., 2020-Ohio-5005.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA IN RE A.R., ET AL. Minor Children [Appeal by J.M.B., Mother] : : : : : No. 109482 JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED IN PART AND AFFIRMED IN PART RELEASED AND JOURNALIZED: October 22, 2020 Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-19900278 and AD-19900279 Appearances: John H. Lawson, for appellant. Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brittany Leach, Assistant Prosecuting Attorney, for appellee. LARRY A. JONES, SR., J.: Appellant-Mother, J.M.B. (“Mother”), appeals from two January 2020 judgments of the juvenile court granting the Cuyahoga County Division of Children and Family Services (“CCDCFS” or “the Agency”) permanent custody of her children, A.R. (date of birth September 16, 2005) and Z.R. (date of birth December 17, 2006). For the reasons that follow, we dismiss the appeal relative to A.R. and affirm the court’s judgment relative to Z.R. Background The record shows that the Agency first became involved with the family in January 2016, with the filing of a neglect case against Mother. The complaint alleged issues with discipline, school neglect, and Mother’s mental health; CCDCFS sought protective supervision. A March 2016 case plan included family preservation counseling, parenting classes, maintaining sobriety, drug screens, mental health evaluation, and counseling. In June 2016, Mother admitted to an amended complaint, and the children were adjudicated neglected. The trial court granted predispositional, temporary custody of the children to their father, M.R. (“Father”), who resided in the Columbus, Ohio area. The trial court subsequently modified the temporary custody order, and granted Father legal custody of the children. The order provided that Mother was to have monthly supervised visits with the children. Father maintained legal custody of them through December 2016, at which time Father died of a heroin overdose. Mother’s visitation with the children did not occur while they lived with Father. Days after Father’s death, the Agency filed a new complaint, for dependency, with a prayer for temporary custody; the trial court granted CCDCFS predispositional custody of the children that same day. The children remained with Father’s girlfriend in the Springfield, Ohio area until June 2017, however. Mother did not have visitation with them during that period either. In May 2017, the trial court learned that the children were residing with Father’s girlfriend and issued an order on May 25, 2017, requiring weekly supervised visits for Mother and counseling for the children; the trial court stated that those two orders were to take place “immediately.” The trial court further ordered that CCDCFS was to seek placement for the children in or near Cuyahoga County and file an amended case plan within 14 days. In June 2017, CCDCFS placed the children with maternal grandmother. In July 2017, the Agency was granted temporary custody of the children. In August 2017, the trial court adjudged the children dependent. The order granting temporary custody stated that the goal was reunification. The amended case plan referenced family participation in counseling and a parent coach to work with Mother. The temporary custody was extended in November 2017 and June 2018. Both the Agency and Mother filed motions for legal custody of the children; the Agency’s motion requested that legal custody be granted to maternal grandmother. The trial court denied Mother’s motion, granted the Agency’s motion, and in October 2018, the children were committed to the custody of maternal grandmother, with CCDCFS retaining protective supervision. Mother was granted supervised visitation. The record demonstrates that Mother and grandmother did not get along and, therefore, Mother barely ever visited with the children. This Case: Complaint for Permanent Custody In January 2019, maternal grandmother was admitted into a hospital because of mental health issues. Thereafter, on January 8, 2019, CCDCFS filed a new complaint, seeking permanent custody of the children; the disposition of that complaint is the subject of this appeal. In April 2019, an in camera interview of the children was conducted. In June 2019, Mother filed a motion for visitation and for a “court order for family counseling to determine if reunification is possible.” The trial court adopted the case plans from February 2019 and June 2019. In July 2019, Mother admitted to three paragraphs of CCDCFS’s amended complaint, and the matter proceeded to an adjudicatory hearing on the remaining allegations. After the hearing, the trial court adjudged both of the children to be dependent. The matter was set for trial to take place in October 2019. In August 2019, the guardian ad litem (“GAL”) filed her report and recommendation. Counsel for Mother issued subpoenas for the children to be transported to court for the trial. Both CCDCFS and the GAL filed motions to quash the subpoenas. The matter proceeded to trial on October 21, 2019, at which time the trial court granted the motions to quash the subpoenas. After the trial, the court issued orders committing the children to the permanent custody of the Agency. A.R.’s order was journalized on January 6, 2020, and Z.R.’s order was journalized on January 14, 2020. Mother filed her notice of appeal relative to both of the children on February 6, 2020, which, as Mother acknowledges, in A.R.’s case, was one day past the 30-day requirement for filing an appeal under App.R. 4(A)(1). Further facts of this case will be discussed below. Law and Analysis Jurisdiction as to A.R. After Mother filed this appeal, this court referred the jurisdictional issue of A.R.’s appeal to this panel and, accordingly, we initially consider that issue. It is a basic principle that the failure to file the requisite notice of appeal within the 30-day period deprives the court of jurisdiction to consider an appeal in a civil matter. In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607. In In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, the Supreme Court of Ohio held that “due process does not require that a parent be afforded the right to file a delayed appeal from a judgment terminating parental rights.” Id. at syllabus. In re B.C. involved a parent who had voluntarily relinquished her parental rights, but later regretted the decision and asserted that she had received ineffective assistance of counsel so that she did not understand the ramifications of her decision to relinquish her parental rights. When the mother attempted to invoke App.R. 5 and file a delayed appeal outside of 30 days, the court of appeals dismissed the appeal and the Supreme Court of Ohio affirmed. The court held as follows: The issue in this appeal is whether due process requires that a parent whose parental rights have been terminated be afforded the right to a delayed appeal from the judgment of termination, comparable to the delayed appeal afforded to certain [criminal] defendants by App.R. 5(A). We hold that due process does not entitle the parent in such a case to file a delayed appeal. In re B.C. at ¶ 1. We recognize that one Ohio appellate district allowed a delayed appeal in a permanent custody case: In re S.U., 12th Dist. Clermont No. CA201407-055, 2014-Ohio-5748. The initial grant of delayed appeal in that case predated In re B.C., however. Also, this court granted a delayed appeal to a parent initially, then reversed itself and noted that App.R. 5(A) applies only to criminal cases. In re Bryant, 8th Dist. Cuyahoga Nos. 58483 and 58484, 1991 Ohio App. LEXIS 2176 (May 9, 1991). Mother urges us to consider the tolling provisions under App.R. 4(B)(2). App.R. 4(B)(2) provides an exception to the 30-day time requirement in a civil case or juvenile proceeding, if a party timely and appropriately files any of the following: (a) a motion for judgment under Civ.R. 50(B); (b) a motion for a new trial under Civ.R. 59; (c) objections to a magistrate’s decision under Civ.R. 53(D)(3)(b) or Juv.R. 40(D)(3)(b); (d) a request for findings of fact and conclusions of law under Civ.R. 52, Juv.R. 29(F)(3), Civ.R. 53(D)(3)(a)(ii), or Juv.R. 40(D)(3)(a)(ii); (e) a motion for attorney fees; or (f) a motion for prejudgment interest[.] App.R. 4(B)(2). If a party has filed one of the above, “then the time for filing a notice of appeal from the judgment or final order in question begins to run as to all parties when the trial court enters an order resolving the last of these postjudgment filings.” Id. Mother contends that a motion was pending when A.R.’s decision was journalized on January 6, 2020 that being the Agency’s permanent custody motion on Z.R. But as set forth above, App.R. 4(B)(2) contemplates that the motion is a postjudgment motion. The motion for permanent custody of Z.R. was not a postjudgment motion and, therefore, App.R. 4(B)(2) is not applicable. In light of the above, we find that we are compelled to conclude that a right to a delayed appeal under App.R. 5(A), App.R. 4(B)(2), or on any other basis does not apply in this case. Therefore, we dismiss this appeal as it relates to A.R. We now consider the issues raised in this appeal as they relate to Z.R. Permanent Custody of Z.R. A parent has a “‘fundamental liberty interest’ in the care, custody and management” of his or her child, In re Murray, 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and the right to raise one’s own child is “‘an essential and basic civil right.’” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). However, this right is not absolute. It is “‘always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’” In re L.D., 2017Ohio-1037, 86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979). Because termination of parental rights is “‘the family law equivalent of the death penalty in a criminal case,’” it is “an alternative [of] last resort.” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14; In re Gill, 8th Dist. Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645 N.E.2d 812 (9th Dist.1994). All children have “‘the right, if possible, to parenting from either natural or adoptive parents that provide support, care, discipline, protection and motivation.’” In re J.B. at id., quoting In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are terminated, the goal is to create “a more stable life” for dependent children and to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860, 5 (Aug. 1, 1986). In her first assignment of error, Mother contends that the trial court’s decision to grant CCDCFS permanent custody of Z.R. was an abuse of discretion because neither its order nor the transcript from the July 2019 hearing mention “reasonable efforts” to reunite Mother with Z.R. The July 2019 hearing was the adjudicatory hearing. Under R.C. 2151.28(B), “[a]t an adjudicatory hearing * * * the court, in addition to determining whether the child is an abused, neglected, or dependent child, shall determine whether the child should remain or be placed in shelter care until the dispositional hearing.” The section provides that the court “shall comply with section 2151.419 of the Revised Code.” R.C. 2151.28(B)(2). R.C. 2151.419 is titled “Determination as to whether agency made reasonable efforts to prevent removal or to return child to home,” and requires such a finding where the court “continues the removal of a child from the child’s home.” R.C. 2151.419(A)(1). The court did not make a reasonable-efforts finding at the July 2019 adjudicatory hearing. However, at the conclusion of the hearing, the court allowed Mother’s counsel to address any additional issues that the court needed to consider. Counsel did not raise the issue of a reasonable-efforts determination. Moreover, throughout the hearing, Mother’s counsel never even contended that Z.R. should be placed in her care or that CCDCFS failed to offer assistance in helping Mother resolve her issues. Further, as will be discussed below, the trial court made a reasonable-efforts determination at the January 2019 hearing on the motion for temporary custody and at the permanent custody hearing, which it was not mandated to do. An agency may obtain permanent custody of a child in two ways. In re E.P., 12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-Ohio2761, ¶ 22. An agency may first obtain temporary custody of the child and then file a motion for permanent custody under R.C. 2151.413. Or an agency may request permanent custody as part of its original abuse, neglect, or dependency complaint under R.C. 2151.353(A)(4). The Agency requested permanent custody of Z.R. in the dependency complaint under R.C. 2151.353(A)(4). When proceeding on a complaint with an original dispositional request for permanent custody, the trial court must satisfy two statutory requirements before ordering a child to be placed in the permanent custody of a children’s services agency. Specifically, the trial court must find, “in accordance with division (E) of section 2151.414 of the Revised Code 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,” and further must determine “in accordance with division (D)(1) of section 2151.414 of the Revised Code that the permanent commitment is in the best interest of the child.” R.C. 2151.353(A)(4). The trial court was not required to make a reasonable-efforts determination at the permanent custody hearing: “R.C. 2151.412 does not require that a court order a reunification plan when it makes disposition pursuant to R.C. 2151.353(A)(4).” In re Baby Girl Baxter, 17 Ohio St.3d 229, 234, 479 N.E.2d 257 (1985); see also In re Moloney, 24 Ohio St.3d 22, 25-26, 492 N.E.2d 805 (1986). Thus, Baxter and Moloney establish that a reasonable-efforts determination is not required at a permanent custody hearing under R.C. 2151.353(A)(4). The record demonstrates that such a determination was made earlier in the proceedings, however. Specifically, at the hearing on the motion for temporary custody, the magistrate found that CCDCFS made reasonable efforts to prevent the removal of Z.R. We find that finding was supported by competent, credible evidence and, therefore, we will not substitute our judgment for it.1 The Agency contends, and we agree, that this case is similar to In re T.S., 2017-Ohio-482, 85 N.E.3d 225 (2d Dist.). In In re T.S., the child had been adjudicated dependent on three separate occasions. The third adjudication resulted from a complaint for permanent custody. The appellant mother claimed that the agency failed to address to make reasonable efforts to the family. But the reasonable-efforts determination had previously been made. The Second Appellate District overruled the assignment of error stating, [w]e note too that the trial court repeatedly made “reasonable efforts” findings in this case, which commenced in 2013. The last of those findings appears to have been made as recently as August 2015 when the trial court granted GCCS interim custody after the agency’s third dependency complaint. Under these circumstances, we would find harmless error even if the trial court were required to include a reasonable-efforts finding in its permanent-custody decision. The 1“If the record shows some competent, credible evidence supporting the trial court’s grant of permanent custody to the county, we must affirm that court’s decision, regardless of the weight we might have chosen to put on the evidence.” In re P.R., 8th Dist. Cuyahoga No. 76909, 2002-Ohio-2029, ¶ 15. record illustrates, and the trial court repeatedly found, that GCCS did make reasonable efforts to avoid removing T.S. from Mother’s care and to return the child there. See, e.g., In re C.B.C., 4th Dist. Lawrence Nos. 15CA18, 15CA19, 2016-Ohio-916, ¶ 78 (noting that a trial court’s failure to make a “reasonable efforts” finding can constitute harmless error under appropriate circumstances); In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, ¶ 15 (finding at most harmless error in trial court’s determination that agency was not required to make “reasonable efforts” to reunify parent and child, in termination of parental rights proceeding, where the trial court already had made several “reasonable efforts” findings earlier in the case). In re T.S. at ¶ 33. Like in In re T.S., a reasonable-efforts determination had previously been made in this case. In January 2019, a hearing on the motion for temporary orders was held, and the magistrate questioned the Agency’s supervisor, Jason Vicens (“Vicens”), about its reasonable efforts as to both Mother and grandmother, from whom Z.R. had been removed. Relating to grandmother, Vicens testified that the Agency offered her psychiatric services, but she refused. Relating to Mother, Vicens testified that she was receiving mental health services from two providers, and had referrals for drug screens. Vicens further testified that he would like Mother to complete drug screens more consistently; her last screen for the Agency had been in July 2018. Vicens also reported that Z.R. was receiving services through two providers. The GAL informed the court that Z.R. was living with a family friend and was stable; she recommended family therapy.2 At the conclusion of the hearing, the magistrate (1) found probable cause for Z.R.’s removal, (2) found that CCDCFS had made reasonable efforts to prevent Z.R.’s removal from her grandmother’s care, and (3) granted the Agency’s motion for temporary custody. At the next hearing, the July 2019 adjudicatory hearing, Mother stipulated to an amended complaint, thereby stipulating that Z.R. was previously adjudicated neglected due, in part, to Mother’s failure to participate in recommend services and engage in substance abuse treatment and parenting education. Mother was in counseling at the time, and the Agency’s social worker admitted that she had been complying with the case plan.3 However, Mother did not start complying until after November 2018, and did not begin substance abuse services until June 2019. The trial on the complaint for permanent custody took place in October 2019. Iris Kelly (“Kelly”), a CCDCFS social worker, testified. She explained that, after Father passed away, maternal grandmother was granted legal custody of Z.R. because Mother was not complying with her case plan services and 2At the hearing, Mother indicated that she had not been able to visit with Z.R. since October 2018. Vicens informed the court that visitation had been difficult because of Mother’s work schedule and her insistence that visits occur on Saturdays. 3Mother was diagnosed with PTSD and depression; her case plan addressed her mental health, substance abuse, and parenting education. she did not believe placement with Mother at that time would be in Z.R.’s best interest. Kelly testified that while Z.R. was in the Agency’s custody in 2017, Z.R. was involved with two providers for counseling services. She explained that one of the therapists recommended that family therapy would not be in Z.R.’s best interest. Further, CCDCFS stopped Mother’s visitation with Z.R.; Z.R. expressed that she did not feel safe with Mother and did not want to visit with her. Kelly testified that Mother had been referred to complete a parenting class, which Mother did. However, Kelly was unable to determine whether Mother benefitted from parenting education. Mother was also referred for drug and alcohol assessment, but she did not engage in those services until June 2019. Kelly also testified that, since April 2019, she had been unable to verify Mother’s employment and, therefore, she was unable to determine whether Mother was able to provide for Z.R.’s basic needs. Z.R. had been placed with an individual since January 2019, and according to Kelly, she had been making improvements and wished to stay in that placement. In light of the above, Kelly testified that it was her belief that permanent custody was in Z.R.’s best interest. Mother testified. She explained that she had a strained relationship with grandmother (her mother), who, as mentioned, was the former legal custodian of Z.R. Mother admitted that grandmother had called the police on her several times to have her removed from grandmother’s house. She also admitted that after January 2019, she did not hear from Z.R., despite Z.R. having her telephone number and the number not changing. Z.R.’s GAL also testified; she had been her GAL since 2016 and had a good relationship with her. The GAL testified that Z.R. was doing well with the foster mother. Z.R. wanted to “move on” from her Mother. The GAL further testified that Z.R. had physical scars that were inflicted while she had been in Mother’s care. According to the GAL, she would not have been surprised if Z.R. was afraid to return to Mother. It was the GAL’s recommendation that CCDCFS be granted permanent custody. Although the court, as mentioned, was not required to make a reasonable-efforts determination on the Agency’s dependency complaint under R.C. 2151.353(A)(4), it made the following finding in its judgment entry granting permanent custody: “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 removed from the parents * * * the child cannot and should not be placed with either parent.” The court also made a best-interest determination. We note Mother’s concern regarding her lack of visitation and family counseling. We do not find, however, that those two things were due to a lack of reasonable efforts on the part of CCDCFS. Much of the lack of visitation occurred either because of Mother’s schedule, her inability to get along with grandmother, or for Z.R.’s interest (i.e., Z.R. did not wish to visit with Mother; she indicated she did not feel safe with her). In regard to family counseling, the record shows that it did not go forward because Z.R. was in trauma counseling, and her therapist did not believe family counseling would be in her best interest. In light of the above, the record demonstrates that CCDCFS made reasonable efforts to reunify Z.R. with Mother; it made the finding at the January 2019 hearing on the motion for temporary custody, and at the October 2019 hearing on the complaint for permanent custody. The lack of such a finding at the July 2019 hearing was harmless error. Thus, the first assignment of error is overruled. As mentioned, counsel for Mother issued a subpoena for Z.R. to be transported to court for the permanent custody trial. Both CCDCFS and the GAL filed motions to quash the subpoenas, and the trial court granted them. In her second assignment of error, Mother contends that the trial court abused its discretion and denied her due process rights by squashing her subpoenas. Appellate courts review trial court decisions on motions to quash subpoenas for abuse of discretion. Chiasson v. Doppco Dev. L.L.C., 8th Dist. Cuyahoga No. 93112, 2009-Ohio-5013, ¶ 10. Accordingly, we will not reverse the trial court’s decision absent an abuse of discretion. Generally, an abuse of discretion is more than an error of law or judgment; rather, it implies that the trial court’s attitude was unreasonable, arbitrary or unconscionable. Landis v. Grange Mut. Ins. Co., 82 Ohio St.3d 339, 342, 695 N.E.2d 1140 (1998). In applying this standard, appellate courts may not simply substitute their own judgment for that of the trial court. In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). Rather, to establish an abuse of discretion, it must be demonstrated that the result is so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but defiance of judgment, and not the exercise of reason but, instead, passion or bias. Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). The court addressed the subpoena at the start of the permanent custody hearing. Mother’s counsel informed the court that the subpoena had been issued for the purpose of having Z.R. observe the proceeding, not to testify. Mother had no right to have Z.R. to observe the proceeding. There is even no requirement that a child testify. Rather, “[w]hen determining the wishes of the child, a court is required by R.C. 2151.414(D)(2) to consider 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.’” In Re C.F., 113 Ohio St.3d 73 2007- Ohio-1104, 862 N.E.2d 81, ¶ 55, quoting R.C. 2151.414(D)(2). “The statute does not impose the additional requirement that the trial court also consider whether the children want to testify or whether testifying would be detrimental to them.” In re C.F. at id. Further, the Revised Code provides that the juvenile court “may excuse the attendance of the child at the hearing in cases involving abused, neglected, or dependent children.” R.C. 2151.35(A)(1). This provision is mirrored by the Ohio Rules of Juvenile Procedure, which provides that the court “may excuse the attendance of the child at the hearing in neglect, dependency, or abuse cases.” Juv.R. 27(A). Z.R. was examined in camera. Further the GAL submitted her report to the court and was subject to cross-examination at the permanent custody hearing. Z.R.’s interests were represented; Z.R.’s presence at the hearing was not necessary. In her motion to quash, the GAL informed the court that she believed that requiring Z.R. to testify (or by implication, to be present) at the hearing would be “traumatic” for Z.R. On this record, we find neither an abuse of discretion nor a violation of Mother’s due process rights. In light of the above, the second assignment of error is overruled. Appeal dismissed as to A.R.; judgment affirmed as to Z.R. 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. LARRY A. JONES, SR., JUDGE MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR

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