Opinion
No. 107851
05-09-2019
In Re: X.Q., Et Al. Minor Children [Appeal by S.M., Mother]
Appearances: The Law Office of Richard Tadd Pinkston, Richard Tadd Pinkston, and Aaron T. Baker, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, Joseph Young, Cheryl Rice, and Michelle A. Myers, Assistant County Prosecutors, for appellee. Ronald Falconi, Guardian Ad Litem.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division
Case Nos. AD-16913999 and AD 16914000
Appearances:
The Law Office of Richard Tadd Pinkston, Richard Tadd Pinkston, and Aaron T. Baker, for appellant. Michael C. O'Malley, Cuyahoga County Prosecutor, Joseph Young, Cheryl Rice, and Michelle A. Myers, Assistant County Prosecutors, for appellee. Ronald Falconi, Guardian Ad Litem. PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant, S.M. (referred to herein as "Appellant"), mother of X.Q. and J.Q., appeals from the order of the juvenile court that awarded permanent custody of the children to the Cuyahoga County Department of Children and Family Services ("CCDCFS"). Appellant assigns the following errors for our review:
I. [Appellant's] due process rights were violated under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 16 of the Ohio Constitution by the numerous failings to receive proper notice, especially regarding the permanent custody hearing.
II. [The ruling below should be] reversed due as [sic] granting the motion for permanent custody was against the manifest weight of the evidence and resulted in a manifest miscarriage of justice.
{¶ 2} Having reviewed the record and the controlling case law, we affirm the decision of the trial court.
{¶ 3} On September 20, 2016, CCDCFS filed a complaint for emergency temporary custody of ten-year-old X.Q. and two-year-old J.Q., alleging they are neglected. CCDCFS alleged that while J.Q. was unrestrained in the backseat, S.M. drove to her boyfriend's location and damaged his vehicle with a hammer. CCDCFS further alleged that S.M. displays symptoms of an untreated "mental health condition" and lacks appropriate housing and parenting skills. A guardian ad litem ("GAL") was appointed for the children, and counsel was appointed for S.M. CCDCFS also implemented a case plan requiring S.M. to obtain suitable housing, provide food for the children, complete psychological evaluations, and follow through with recommended treatment.
{¶ 4} S.M. and her counsel appeared at the emergency temporary custody hearing, and S.M. consented to court's award of temporary custody to the children's maternal grandmother. The GAL reported that the home was "very appropriate" and the children were doing well there.
{¶ 5} In July 2017, CCDCFS moved for permanent custody of X.Q. and J.Q. In relevant part, CCDCFS alleged that S.M. had not completed the requirements of her case plan and moved out of the country in March 2017. The record indicates that this motion, a notice of hearing, and the statutory warnings about the termination of parental rights were sent to S.M. by certified mail at an address on West 50th Street in Cleveland. Service was unsuccessful, however, and the postal return was marked "moved left no address."
{¶ 6} The GAL subsequently advised the trial court that he learned from the maternal grandmother that S.M. "moved to Thailand to be with her internet boyfriend." The children's social worker likewise advised the court that the mother was living in Thailand. The court continued the order of temporary custody, and S.M. was served at an address in Buriram, Buriram Province, Thailand. Service was unsuccessful and the postal return was marked "insufficient address."
{¶ 7} On January 3, 2018, an attorney with CCDCFS advised the court that S.M. had returned to Ohio and had obtained her new address. S.M. was subsequently served at an address on Kenton Avenue in Maple Heights. Certified mail service was returned. However, the postal return was marked "unclaimed," so it was resent by ordinary mail under Civ.R. 4.6 on January 8, 2018. On February 6, 2018, the court noted that S.M. "again failed to appear despite being served" with the motion to modify. The case was later set for trial on June 4, 2018, and S.M. was served at the Kenton Avenue address. On May 17, 2018, service was returned with the postage mark "return to sender not deliverable as addressed unable to forward."
{¶ 8} S.M. did not appear for trial. The record suggests that the GAL called her at the start of the trial. Following a short recess, the matter proceeded in her absence. Counsel for S.M. appeared at the trial and raised no objection to the service or notice.
{¶ 9} Social Worker Marilyn Medina testified that S.M. failed to comply with the terms of her case plan. She moved to Thailand in March 2017, and remained there for eleven months. During this time period, she had "sporadic" contact with the children. After she returned to Ohio, she came back to her neighborhood and worked as a substitute teacher, but she lived in a one-bedroom apartment that was not suitable for the children. She did not contribute to the children's support. Medina further testified that she received a text from S.M. indicating that she "is currently in Utah after she had her new baby." The GAL reported that S.M. "may contact the children sporadically but does not do so on a regular basis." He indicated that that S.M. is "either unable or unwilling to do what she needs to do to have a relationship with her kids." The record further reveals that the father is a Honduran national who was deported back to Honduras. He has sporadic contact with the children, but the last contact occurred more than one year before trial.
{¶ 10} The trial court subsequently terminated the award of temporary custody and awarded permanent custody of the children to CCDCFS. In relevant part, the court stated:
[S.M.'s] case plan included domestic violence, basic needs and emotional support. [S.M.] was referred to CEOGC for domestic violence classes and was linked with Murtis Taylor for mental health services. [S.M.] was also referred to the Community Collaborative for other supportive services. After the Agency became involved, [S.M.] moved to Thailand and did not engage in any services. Reportedly, [S.M.] moved back to the United States in February 2018 but still has failed to engage with the Agency. She is reportedly living in Utah currently but does not have contact with the children. [S.M.] has only spoken to the caseworker over the phone and has not provided any update for her move to Thailand or her residency in Utah. There have been significant periods of time where the [S.M.] had no contact with the children or the Maternal Grandmother. Recently, the [S.M.] contacted the worker by text and reported that she is pregnant and remains in the State of Utah.
The children are currently placed with the Maternal Grandmother and they are doing well. Their needs are met and Maternal Grandmother plans to engage the children in counseling to address past trauma. She is interested in pursuing adoption to provide permanent home. [S.M.] and Father are unable to reunify with the children in any time period due to instability and the failure to maintain contact or support. Both parents have voluntarily abandoned the children.
The Court heard the oral report and recommendation from [the GAL]. He recommends that Permanent Custody be granted.
Pursuant to R.C. 2151.414, the Court finds that the allegations of the Motion have been proven by clear and convincing evidence. The Motion to Modify Temporary Custody to Permanent Custody will therefore be granted.
The Court finds that the child[ren are] abandoned. The Court further finds that the child's continued residence in or return to the home will be contrary to the child's best interest.
Notice of Hearing
{¶ 11} In the first assigned error, S.M. argues that the trial court erred in proceeding with the trial on the termination of parental rights, and terminating her parental rights, because she was not given notice and an opportunity to be heard. Specifically, she asserts that she was not served through diplomatic channels in Thailand and was not served in Utah despite the fact that CCDCSF knew that she was in Utah at the time of the hearing. In opposition, CCDCFS asserts that service was complete when S.M. was served by regular mail at the most recent address that she provided to the county upon her return to Ohio (after certified mail was unclaimed). CCDCFS also asserts that S.M. never notified the county that she was living in Utah, and indicated that she was there as a visitor. CCDCFS asserts that it was incumbent upon S.M. to notify the county of any change in address.
{¶ 12} We recognize that the right to parent one's child is a fundamental right. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. Consequently, courts must afford parents facing the permanent termination of their parental rights every procedural and substantive protection the law allows. In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). The state may not deprive parents of their parental rights without due process of law; that is, both notice and an opportunity to be heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 12-13. A valid court judgment requires both proper service under the applicable Ohio rules and adequate notice under the Due Process Clause. In re J.T., 4th Dist. Jackson No. 18CA9, 2019-Ohio-465, ¶ 31.
{¶ 13} Ohio. Juv.R. 16(A) states that a "summons shall be served as provided in Civil Rules 4(A), (C) and (D), 4.1, 4.2, 4.3, 4.5 and 4.6." R.C. 2151.29 provides that "[s]ervice of summons, notices, and subpoenas * * * shall be made by delivering a copy to the person summoned, notified, or subpoenaed, or by leaving a copy at the person's usual place of residence." Pursuant to Civ.R. 4.6(D), when service is attempted by certified mail, as it was in this case, and the certified mail is returned with an endorsement showing that the envelope was unclaimed, the serving party must be notified, and may then request that service be attempted by ordinary mail. In re Thompkins at ¶ 22. The court stated:
When a postal return reads "Attempted Not Known," no purpose would be served by a follow-up ordinary mail letter sent to the same address. The "Unclaimed" designation implies that the person may in fact reside or receive mail at the designated address but for whatever reason has chosen not to sign for the certified mail. In that situation, a follow-up communication by ordinary mail is reasonably calculated to provide the interested party with notice and an opportunity to be heard. Such a communication, not returned, bears a strong inference that the intended recipient received the letter.Id. at ¶ 23.
{¶ 14} In this matter, we note that the attempted service in Thailand pertains to 2017 efforts to notify S.M. of the proceedings, so they are not controlling in this matter. In 2018, CCDCFS informed the court that it had a new address for S.M. in Maple Heights. This address was used for the certified mail service of the motion for permanent custody and the statutory warnings. After this service was returned as "unclaimed," CCDCFS was permitted to serve S.M. using ordinary mail service under Civ.R. 4.6. That notice was not returned, so service was complete. Id.
{¶ 15} In this matter, we note that the attempted service in Thailand pertains to 2017 efforts to notify S.M. of the proceedings, so they are not controlling in this matter. In 2018, CCDCFS informed the court that it had a new address for S.M. in Maple Heights. This address was used for the certified mail service of the motion for permanent custody and the statutory warnings. After this service was returned as "unclaimed," CCDCFS was permitted to serve S.M. using ordinary mail service under Civ.R. 4.6. That notice was not returned, so service was complete. Id.
{¶ 16} S.M. urges us to apply In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-6374, which vacated an award of permanent custody. However, in that case, the notices of the permanent custody hearing "were deficient in content, in the means by which they were served, and in the manner by which the return was reflected in the record." Id. at ¶ 20.
{¶ 17} Finally, as this court noted in In re D.H., 177 Ohio App.3d 246, 2008-Ohio-3686, 894 N.E.2d 364 (8th Dist.):
Ohio courts have consistently recognized that notice of new or rescheduled hearings sent to a parent's attorney, as prescribed under Juv.R. 20, satisfies the notice requirement. See, e.g., In re Lee P., supra; In re Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, 782 N.E.2d 665. Moreover, the issue of notice is waived on appeal when the parent's attorney is present for various permanent custody hearings and never argues improper notice. In re Lee P., supra, at ¶ 19; In re Billingsley, 3th Dist. Nos. 12-02-07 and 12-02-08, 2003-Ohio-344, ¶ 10. Here, the mother's attorney, after receiving notice of the hearing, appeared before the court and never raised any argument as to improper notice to her client, thereby waiving any argument on appeal.Id. at ¶ 38.
{¶ 18} Similarly, S.M.'s attorney was present and did not argue the issue of improper notice, thus waiving the issue.
{¶ 19} Accordingly, the first assigned error lacks merit.
Permanent Custody
{¶ 20} For her second assigned error, S.M. argues that the trial court erred in awarding permanent custody to CCDCFS, rather than awarding legal custody to the maternal grandmother.
{¶ 21} The juvenile court is not required to determine by clear and convincing evidence that "termination of appellant's parental rights was not only a necessary option, but also the only option" or that "no suitable relative was available for placement." In re Schaeffer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 64. The Schaeffer court stated:
The statute requires a weighing of all the relevant factors, and the trial court did that in this case. R.C. 2151.414 requires the court to find the best option for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a) through (d). The statute does not make the availability of a placement that would not require a termination of parental rights an all-controlling factor. The statute does not even require the court to weigh that factor more heavily than other factors.Id. at ¶ 38.
{¶ 22} A juvenile court's termination of parental rights and award of permanent custody to an agency is not reversed unless the judgment is unsupported by clear and convincing evidence. In re I.S., 8th Dist. Cuyahoga No. 107472, 2019-Ohio-638, ¶ 13, citing In re Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107 (6th Dist.1997); In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48.
{¶ 23} R.C. 2151.414 sets forth a two-prong analysis to be applied by a juvenile court in adjudicating a motion for permanent custody.
First, it authorizes the juvenile court to grant permanent custody of a child to the public agency if, after a hearing, the court determines, by clear and convincing evidence, that any of the following factors apply: (a) the child is not abandoned or orphaned, but the child cannot be placed with either parent within a reasonable time or should not be placed with the child's parents; (b) the child is abandoned; (c) the child is orphaned, and there are no relatives of the child who are able to take permanent custody; (d) the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for 12 or more months of a consecutive 22-month period; or (e) the child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state. R.C. 2151.414(B)(1)(a)-(e). In re J.G., 8th Dist. Cuyahoga No. 100681, 2014-Ohio-2652, ¶ 41. Only one of the factors must be present for the first prong of the permanent custody analysis to be satisfied. In re L.W., 8th Dist. Cuyahoga No. 104881, 2017-Ohio-657, ¶ 28.In re I.S. at ¶ 14-15.
Second, when any one of the above factors exists, the trial court must analyze whether, by clear and convincing evidence, it is in the best interest of the children to grant permanent custody to the agency pursuant to R.C. 2151.414(D). Id.
{¶ 24} The best interests factors are set forth in R.C. 2151.414(D). This statute directs the trial court to consider "all relevant factors," including, but not limited to the following: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; (4) the child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody; and (5) whether any of the factors set forth in R.C. 2151.414(E)(7) to (11) apply. R.C. 2151.414(D)(1)(a)-(e).
{¶ 25} Here, the trial court found that X.Q. and J.Q. were abandoned. R.C. 2151.011(C) provides that "a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." The evidence demonstrated that S.M. went to Thailand and remained there for eleven months. She has only sporadic contact with the children. This finding is supported by clear and convincing evidence.
{¶ 26} The court additionally held that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent. R.C. 2151.414(B)(1)(a). The court found that the children were abandoned; that following the placement of the children outside the home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the children to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside the home; and that the parent has demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with them when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for them. These matters were shown by clear and convincing evidence in light of S.M. going to Thailand for eleven months rather than working on her case plan objectives and assisting with or visiting the children, and her continuous lack of communication and lack of involvement with the social worker and the children. The trial court found in each case that the child had been in the temporary custody of CCDCFS for 12 or more months of a consecutive 22-month period. R.C. 2151.414(B)(1)(d). This was also supported by clear and convincing evidence.
{¶ 27} Moreover, the trial court found, and the record reflects that the termination of parental rights is in the best interest of the children. They have been in temporary custody since September 2016. S.M. did not work on her case plan objectives, had sporadic contact with the children and moved to Thailand for eleven months while the children were in temporary custody. She did not provide thorough and accurate information to the CCDCFS about her moves. Conversely, the children are doing well with the maternal grandmother and were in appropriate housing.
{¶ 28} Accordingly, we find that the trial court's determination that permanent custody is in the children's best interest is supported by clear and convincing evidence going to all required factors and is not erroneous. The second assigned error lacks merit.
{¶ 29} The judgment of the trial court is 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. /s/_________
PATRICIA ANN BLACKMON, JUDGE SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR