COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60049, 60050 IN RE: GEORGE and SHAWN CORDELL : : : JOURNAL ENTRY Plaintiff-Appellees : : : and -vs- : : OPINION CANDICE CORDELL : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 2, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Juv. Div., Case Nos. 8207129 and 8207130 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEES: FOR DEFENDANT-APPELLANT: Lynn Stewart Joan B. Sebelin Cuyahoga County Department Shore, Jacob & Sebelin of Human Services 75 Public Square, Suite 400 3955 Euclid Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44115 - 1 - PRYATEL, J.: Candice Cordell appeals the juvenile court's grant of permanent custody of her two minor children to the Cuyahoga County Department of Human Services ("CCDHS"). She raises the following assignments of error: I "Whether the trial court erred when it granted appellee's motion for permanent custody in light of the fact that both case plans submitted to the court did not comply with O.R.C. Section 2151.412." II "Whether the trial court erred when it found by clear and convincing evidence that it was proper to grant appellee's motion for permanent custody, absent the filing of reports by the children's Guardians Ad Litem, and absent a finding of the existence of one or more of the factors of O.R.C. Section 2151.414(E)(1-8)." Upon review, we affirm. Candice Cordell is the mother of George, Shawn and Danielle Cordell, all minors. George Cordell, Sr. is the father of George and Danielle Cordell but not Shawn. In 1982, George Sr. was convicted on two counts of rape and one count of endangering children for the rape of eight-year-old Danielle. He was given life sentences on each rape count. Candice Cordell also pled guilty to one count of gross sexual imposition arising out of her participation in Danielle's rape. She was given an indeterminate sentence of one to ten years. - 2 - On July 9, 1982, Danielle, George and Shawn Cordell were adjudicated dependent children and committed to the temporary custody of CCDHS. Danielle's maternal grandmother was granted custody of her and thus, she is not the subject of this appeal. The boys were committed to the care of a foster family. In 1985, CCDHS submitted a comprehensive unification plan for all three children pursuant to R.C. 2151.412 which was adopted by the juvenile court. Appellant admits receiving the 1985 plan. In 1988, the plan was modified, though no substantive part of it was changed and it was again adopted by the court. In 1989, a case plan amendment was prepared by a social worker for CCDHS, which apparently was not adopted by the court. Appellant denies receiving either the 1988 modification or 1989 amendment. On December 15, 1989, CCDHS filed a motion for permanent custody of George and Shawn. Candice and George Cordell, Sr. both still incarcerated, opposed the motion. At the custody hearing, appellant testified she was eligible for parole in September 1990 and upon release wanted the boys to live with her. The juvenile court granted CCDHS' motion for permanent custody on May 21, 1990. Candice Cordell timely appealed from this determination. In her first assignment of error, Cordell argues the court erred in granting the Department's motion for permanent custody - 3 - since the case plans submitted to the court did not comply with R.C. 2151.412. R.C. 2151.412 in effect at the time that temporary custody of the two children was granted to the CCDHS, provides that it shall, within sixty days after the issuance of the temporary custody order or sixty days after approval of the revised initial plan, prepare and file with the court a comprehensive reunification plan ("case plan") for the child, designed to rehabilitate and reunite the child's family. A copy of the plan is to be provided to all parties in the action. Since the 1989 case plan amendment was never adopted by the trial court, our review is limited to the 1985 plan and the 1988 modification. Appellant argues these plans failed to comply with sections (F), (G) and (H) of the statute. Section (F) of the statute lists the goals case plans should seek to achieve. Subsection (F)(1)(b)(ii) provides that a case plan should "develop and implement an alternative permanent living arrangement for the child" if the child's return to the home "is not imminent or desirable." At the time the case plan was first filed and later modified, George Cordell was serving two life sentences and Candice was serving her indeterminate sentence of one to ten years. Since both parents return to home was not imminent, the 1985 case plan recommended that George and Shawn be placed in "foster care," offered "protective services, counseling" and "medical care." The record shows both George and Shawn were committed to the - 4 - custody of a foster family which expressed a desire to adopt them. We find the case plan sufficiently complied with section (F). Section (G) of the statute lists several priorities the court should be guided by in developing and reviewing a case plan. Candice Cordell contends CCDHS failed to comply with (G)(2) which provides: "(2) If both parents of the child have abandoned the child, have relinquished custody of the child, have become incapable of supporting or caring for the child even with reasonable assistance, or have a detrimental effect on the health, safety, and best interest of the child, the child should be placed in the legal custody of a suitable member of the child's extended family." Valerie Epps, a social worker for CCDHS testified at the permanent custody hearing that the maternal grandmother and maternal aunt were the only relatives who kept in contact with the boys. Epps stated, however, that both were unable or unwilling to care for the boys. The grandmother already had custody of Danielle and was experiencing health problems. No specific reason was given why the aunt was unable to care for the boys. Furthermore, since it was unlikely that either parent would be released from prison in the near future, CCDHS had no alternative but to find foster parents for the boys. Subsection (G)(5) of the statute provides: "(5) If the child cannot be placed with either of his parents within a reasonable period of time or should not be placed with either, if no suitable member of the child's extended family or suitable nonrelative is available to accept legal custody of the child and if the agency has a reasonable expectation of placing the child for adoption, the child should be committed to the permanent custody of - 5 - the public children services agency or private child placing agency." We note also that in seeking permanent custody, CCDHS undoubtedly concluded that the boys "should not be placed with either [parent]" even if appellant was released on parole. The nature of the crimes both parents were convicted of i.e., the rape of their eight-year-old daughter, clearly weighed heavily in CCDHS' decision. Accordingly, we find sufficient compliance with section (G). Finally, section (H) of the statute provides that a case plan shall require both parents to participate in counseling and supportive services if the children witnessed the abuse of a sibling. A review of the 1985 plan and the 1988 modification shows that both parents were required to undergo psychiatric therapy, counseling and develop their parenting skills. We conclude that the comprehensive unification plan and its modification submitted to the court reasonably complied with the requirements set forth in R.C. 2151.412 (F), (G) and (H). For these reasons, the first assignment of error is overruled. In her second assignment of error, Candice argues the court erred in granting permanent custody since no written reports were filed by the guardian ad litem and no evidence was offered that any of the factors in R.C. 2151.414(E)(1-8) existed. - 6 - R.C. 2151.414 sets forth the requirements before a motion for permanent custody is granted. Section (C) provides in part: "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." It is undisputed that the guardian ad litems for both George and Shawn did not file written reports, however, no objection was made by either parent at the time of the hearing. The guardian ad litems did make oral recommendations as to the children's best interests at the hearing. A trial court does not abuse its discretion in granting a motion for permanent custody where the guardian ad litem failed to issue a written report, no objection was offered at the hearing, and the trial court properly examined the factors set forth in R.C. 2151.414. Shiflett v. Korp (September 27, 1990), Cuyahoga App. No. 58293, unreported at 6. The question before this court then, is whether the trial court examined the factors found in R.C. 2151.414 and found evidence to support its determination. R.C. 2151.414(B) states that permanent custody may be granted if: "*** [T]he court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency - 7 - 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 parent. ***." In its findings of fact, the trial judge found by clear and convincing evidence that it was in the best interests of the children to grant permanent custody to the CCDHS. Section (D) of the statute provides that the court shall consider the following factors in determining the best interests of the child: "(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 interrelation 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." Finally, section (E) provides that a court shall enter a finding that the child cannot or should not be placed with either parent if any of the following exist: "(1) *** the parent has 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. - 8 - "*** "(5) The parent is incarcerated for an offense committed against the child or a sibling of the child." Valerie Epps, the social worker assigned to the case for CCDHS testified the two boys had been in the same foster home for the past seven years. If the motion for permanent custody were granted, the foster family would adopt the boys. Ilissa Pearlman, a consultant for CCDHS, told the court she conducted a psychological evaluation of George, Jr. She also interviewed his foster mother and therapist in order "to determine the nature of his relationship with his foster family, to see what kinds of feelings he had about his biological family." She stated George considers his foster family to be his family, "very much feels a part of that family" and would "like to be adopted by them." He also stated to her that he had no contact with his biological parents and expressed relief that they will not have contact with him. She concluded his removal from the foster home would not be in his best interests. Pearlman did not have a recommendation for Shawn since she never evaluated him or spoke with him. Nevertheless, it seems that the recommendations offered for George apply equally to Shawn since both were in the care of the same foster family. Upon review of testimony offered at the hearing and the trial court's findings of fact, we conclude the trial court reasonably considered the factors set forth in R.C 2151.414 in granting CCDHS permanent custody. Clear and convincing evidence existed - 9 - that: 1) Candice Cordell failed continuously and repeatedly for a period of six months or more to substantially remedy the conditions causing placement outside the home; 2) she was incarcerated for molesting a sibling of the boys. Accordingly, the second assignment is overruled and the judgment of the trial court is affirmed. - 10 - 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 Common Pleas 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. PATTON, PRESIDING JUDGE JAMES D. SWEENEY, J., CONCUR. JUDGE *AUGUST PRYATEL *(Sitting by assignment: Judge August Pryatel, retired from the Eighth District Court of Appeals). 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. .