COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59399 IN RE: QUINTON BELL, A MINOR : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CUYAHOGA CTY. DEPT. OF HUMAN : SERVICES : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court, Case No. 8501674. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Michael A. Wypasek, Esq. 605 Terminal Tower Cleveland, Ohio 44113-2203 For Defendant-appellee: Celestine Suttles, Esq. Cuyahoga County Department of Human Services 3955 Euclid Avenue Cleveland, Ohio 44115 -2- SWEENEY, JAMES D., J.: Donna Bell ("Bell"), natural mother of her minor son Quinton Bell ("Quinton"), appeals from the trial court's determination that all parental rights be permanently terminated and that Quinton be committed to the permanent care and custody of the Cuyahoga County Department of Human Services ("CCDHS") for the purposes of adoption. For the reasons adduced below, we affirm. A review of the record reveals that Bell gave birth to Quinton on December 25, 1984. At the time, Bell was an unmarried, sixteen year old, and had dropped out of high school several months prior to the birth. On March 5, 1985, Quinton was placed in the care of a foster home by CCDHS pursuant to a court order for emergency custody. On December 12, 1985, Quinton was committed to the temporary custody of CCDHS after the court found him to be a dependent child. On July 14, 1987, the juvenile court, at the request of Bell, ordered that Quinton may be returned to Bell's care and custody at the discretion of CCDHS. Several attempts were made by CCDHS to reunite Quinton with Bell, but the strains and pressures of everyday life on the part of Bell made any permanent reunification impossible. In September of 1988, CCDHS finally obtained the consent of Bell to a reunification. Due to Bell's unavailability caused by her work schedule, Quinton, at the request of Bell, was left at -3- the home of the maternal great grandmother. Up until January 9, 1989, Quinton remained in the care and custody of Bell. On January 9, 1989, Bell requested from CCDHS that Quinton be returned to the care of the foster home he had been living in. This request was granted by CCDHS. It was anticipated at the time by both CCDHS and Bell that parental rights would be terminated upon Quinton's wish to be adopted by the consenting foster family. On May 30, 1989, CCDHS filed a motion for permanent custody, thereby seeking to terminate permanently all of Bell's parental rights. Following several continued hearings to allow involved parties to obtain counsel, the motion by CCDHS for permanent custody was finally heard by the trial court on December 19, 1989. At this hearing, two persons testified on behalf of CCDHS: Ms. Camilla Mabus ("Mabus"), the caseworker for CCDHS assigned from the beginning to the case of Bell and Quinton; and, Dr. Paul DeVincenzo, a counseling psychologist who interviewed and tested Quinton. Mabus testified that Quinton was very happy and content in his foster home and sought to remain there. It was her opinion that Quinton had bonded to the foster parents as real parents. Mabus also recounted that Bell had liberal visitation with Quinton. This visitation, which would occur whenever Bell could accommodate it under her work schedule, would consist of Quinton -4- staying with Bell for up to several weeks at a time. Mabus noted that the boy was babysitted by the maternal great grandmother when the boy was in Bell's care. Regarding reunification, Mabus stated that she asked Bell to attend counseling to ease the transition to full-time custody, but Bell refused. Mabus stated that she told Bell in mid-1987 that she could get full-time custody of the boy at any time, but Bell was ambivalent. There was always some excuse by Bell to delay reunification. Mabus returned the boy to Bell in September of 1988 because Mabus's supervisor had set a deadline for reunification. Mabus also stated that Quinton loved Bell, his great grandmother, and his younger sister, Ebony, but that he wished to remain with the foster family. It was the witnesses' observation that Ebony also spends a great deal of time with the maternal great-grandmother due to Bell's work schedule. Dr. DeVincenzo testified that Quinton had a good bonding relationship with the foster family. The boy also referred to himself using the foster family's last name as his own. Quinton wished to remain in the custody of the foster family. It was the witnesses' opinion that at this point, the boy needed a stable home. The doctor also stated that Quinton wondered why he wasn't being adopted by the foster family in light of the fact that the foster family had already adopted another black boy. Upon questioning by the court, the doctor testified that in the eyes of children in long-term foster care, adoption means -5- finalization of the situation thereby giving the child a sense of security and belonging. Bell testified on her own behalf during her case-in-chief. She stated that she presently resided with Ebony and her aunt in a single family home owned by the aunt. Bell also stated that she was twenty-one at the time of the hearing and that Ebony was born in August of 1986. Bell claimed she did not know why CCDHS was given emergency custody of Quinton in March of 1985. She could not ask the court for custody of the boy prior to September, 1988, due to a non-conducive environment in Bell's personal life. She claimed that she had to give Quinton back to the foster parents in January of 1989 due to her losing her job at a retail candy store in December of 1988 and the fact that she couldn't take care of him. She thought at the time it was best to return him to the foster family. No other persons testified at the hearing. The putative father of Quinton was convicted in 1987 of felonious assault and aggravated robbery with a gun specification. He is presently serving his effective sentence of 11-40 years imprisonment. The court granted the motion of CCDHS on January 9, 1990. Bell filed a notice of appeal on February 23, 1990. The trial court prepared and issued findings of fact and conclusions of law on May 17, 1990 pursuant to R.C. 2151.414(C). Bell raises one assignment of error for review. -6- WHETHER THE COURT ERRED WHEN IT FOUND THAT IT WAS IN THE BEST INTERESTS OF QUINTON BELL TO GRANT PERMANENT CUSTODY OF HIM TO THE DEPARTMENT OF HUMAN SERVICES. R.C. 2151.414 provides: [ 2151.41.4] 2151.414 Hearing on motion for permanent custody; notice; determinations necessary for granting motion. (A) Upon the filing of a motion pursuant to section 2151.413[2151.41.3] of the Revised Code for permanent custody of a child by a public children services agency or private child placing agency that has temporary custody of the child, the court shall schedule a hearing and give notice of the filing of the motion and of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the action and to the child's guardian ad litem. The notice also shall contain a full explanation that the granting of permanent custody permanently divests the parents of their parental rights, a full explanation of their right to be represented by counsel and to have counsel appointed pursuant to chapter 120 of the Revised Code if they are indigent, and the name and telephone number of the court employee designated by the court pursuant to section 2151.314 [2151.31.4] of the Revised Code to arrange for the prompt appointment of counsel for indigent persons. The court shall conduct a hearing in accordance with section 2151.35 of the Revised Code to determine: if it is in the best interest of the child to permanently terminate parental rights and grant permanent custody to the agency that filed the motion. The adjudication that the child is an abused, neglected, or dependent child and the grant of temporary custody to the agency that filed the motion shall not be readjudicated at the hearing and shall not be affected by a denial of the motion for permanent custody. (B) the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and -7- convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (1) The child is not abandoned or orphaned and the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents; (2) The child is abandoned and the parents cannot be located; (3) The child is orphaned and there are no relatives of the child who are able to take permanent custody. (C) In making the determinations required by this section or division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child. A written report of the guardian ad litem of the child shall be submitted to the court prior to or at the time of the hearing held pursuant to division (A) of this section or section 2151.35 of the Revised Code but shall not be submitted under oath. If the court grants permanent custody of a child to a movant under this division, the court, upon the request of any party, shall file a written opinion setting forth its findings of fact and conclusions of law in relation to the proceeding. The court shall not deny an agency's motion for permanent custody solely because the agency failed to implement any particular aspect of the child's case plan. (D) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following: -8- (1) The reasonable probability of the child being adopted, whether an adoptive placement would positively benefit the child, and whether a grant of permanent custody would facilitate an adoption; (2) The interaction and interrelationship of the child with his parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (3) The wishes of the child, as expressed directly by the child or through his guardian ad litem, with due regard for the maturity of the child; (4) The custodial history of the child; (5) 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 to the agency. (E) In determining at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code whether a child cannot be placed with either of his parents within a reasonable period of time or should not be placed with his parents, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 [2151.35.3] of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either of his parents within a reasonable time or should not be placed with his parents: (1) Following the placement of the child outside his 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 -9- failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing the child to be placed outside his home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. (2) The severe and chronic mental illness, severe and chronic emotional illness, severe mental retardation, severe physical disability, or chemical dependency of the parent makes the parent unable to provide an adequate permanent home for the child at the present time and in the foreseeable future; (3) The parent committed any abuse as described in section 2151.031 [2151.03.1] of the Revised Code against the child, caused the child to suffer any neglect as described in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as described in section 2151.03 of the Revised Code between the date that the original complaint alleging abuse or neglect was filed and the date of the filing of the motion for permanent custody; (4) 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; (5) The parent is incarcerated for an offense committed against the child or a sibling of the child; (6) The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least -10- eighteen months after the filing of the motion for permanent custody or the dispositional hearing; (7) The parent is repeatedly incarcerated and the repeated incarceration prevents the parent from providing care for the child; (8) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect. (F) the parents of a child for whom the court has issued an order granting permanent custody pursuant to this section, upon the issuance of the order, cease to be parties to the action. This division is not intended to eliminate or restrict any right of the parents to appeal the granting of permanent custody of their child to a movant pursuant to this section. (Emphasis added). The trial court is authorized pursuant to R.C. 2151.414 (D) to consider all relevant factors in determining the best interests of the child. Paragraph (D) lists specifically five factors, which the court now considers. Paragraph (D)(1) was clearly demonstrated to the trial court. The foster family is desirous of formally adopting Quinton upon the termination of Bell's parental rights. The record also supports a finding under Paragraph (D)(2) that Quinton was comfortable and loving with his biological relatives. It is equally clear that Quinton loved his foster family and sought to return there while visiting Bell. With regard to Paragraph (D)(3), Quinton's guardian ad litem stated during closing arguments that Quinton expressed his wish -11- to her to remain with the foster family. The guardian concurred in the boy's judgment. Paragraph (D)(4), dealing with the custodial history of Quinton, has been previously outlined in this opinion. To say the least, the determination of this factor clearly is in favor of the foster family and the termination of Bell's parental rights. Paragraph (D)(5) was discussed in the testimony of Dr. DeVincenzo. It was his professional opinion that Quinton, a subject of long-term foster care, sought a sense of security and permanency and that an adoption by the foster family at the time would supply Quinton with these requirements. Judging from Bell's past history in failing to take the necessary steps in her personal life to effect the permanent custody and care of Quinton, it is doubtful that Quinton could achieve a secure permanent placement without a grant of permanent custody to CCDHS. Turning our attention to Paragraph (E)(4), Bell has amply demonstrated to the satisfaction of this panel and the trial court that she has "demonstrated a lack of commitment toward the child by failing to regularly support" Quinton. Furthermore, her actions, in repeatedly avoiding permanent reunification, indicates her "unwillingness to provide an adequate permanent home for the child." Finally, Paragraph (E)(6), was convincingly demonstrated with regard to the putative father. -12- The record indicates that the trial court did not abuse its discretion in finding that the best interests of Quinton at the time require a conclusion that CCDHS be granted permanent custody of the child and that Bell's parental rights be terminated. Assignment overruled. Judgment affirmed. -13- It is ordered that appellee recover of appellant its 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 Juvenile Court 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. Exceptions. DYKE, P.J., and ANN MCMANAMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .