COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71046 IN RE: ANGEL GRANT : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Juvenile Division Case No. 9301232 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SARA E. JONES, ESQ. DAVID L. DOUGHTEN, ESQ. Cuyahoga County Department of 4403 St. Clair Avenue Children and Family Services Cleveland, Ohio 44103 Legal Department 3955 Euclid Avenue Cleveland, Ohio 44115 -2- DYKE, J.: John Carter appeals from the judgment of the juvenile court which awarded the Cuyahoga County Department of Children and Family Services (hereafter referred to as CCDCFS ) permanent custody of his daughter, Angel Grant. Mr. Carter asserts that this judgment is against the manifest weight of the evidence. For the reasons set forth below, we affirm the judgment of the juvenile court. The record reveals that on January 8, 1993, CCDCFS filed a complaint with the juvenile court seeking temporary custody, or in the alternative, permanent custody, of Angel Grant (d.o.b. September 1, 1990) and Nakeya Grant (d.o.b. July 5, 1992)1, alleg- ing that the children were neglected. CCDCFS further alleged, in relevant part, that the children's mother has had a drug abuse problem for many years, has failed to complete treatment, and is homeless. In the month preceding the filing of the complaint, the mother was arrested and placed the children in the care of a relative. While in the care of that relative, Angel was evaluated for sexual molestation and is suspected of being sexually molested. On February 22, 1993, the complaint was personally served upon Mr. Carter advising him of the date and time of a scheduled hearing in the matter. 1The trial court also awarded permanent custody of Nakeya Grant to CCDCFS. John Carter filed an appeal of that award to this court but the appeal was later dismissed. See In re Nakeya Grant (October 29, 1997), Cuyahoga App. No. 71047, motion no. 87232, unreported. -3- On February 26, 1993, a case plan was promulgated which, in relevant part, stated that its goal was to reunite the girls with their parent. The role of Mr. Carter, who had not established his paternity of Angel as of the date of the case plan, was also addressed in the case plan. The plan recommended that he become drug and alcohol free and indicated that he needed to complete treatment and after care programs. Counsel was subsequently appointed for Mr. Carter and an evidentiary hearing on the matter was held on March 31, 1993. Thereafter, on April 14, 1993, the juvenile court issued an order in which it determined that there was clear and convincing evidence that the children were neglected and awarded temporary custody of them to CCDCFS. On December 10, 1993, the case plan was amended to indicate that CCDCFS had changed the goal of the plan from reunifying the girls with their mother to establishing a permanent alternate placement. This change reflected the mother's continuing inability to become drug free and also reflected that there were additional indications that Angel had been sexually abused. In subsequent dispositional reviews, the court ordered extensions of the temporary custody award. Thereafter, in May 1994, the case plan was amended for a second time to indicate that the children had been placed in an agency foster home after their maternal second cousin, Georgina Agostino, could no longer care for them. The following month, CCDCFS moved to modify custody in order to place the girls in long term foster care. The lower court denied this motion. -4- In a subsequent review, CCDCFS again sought long term foster care for the girls and provided notice of a hearing to Mr. Carter's counsel. On September 5, 1995, the trial court granted this motion and determined that although CCDCFS had made reasonable efforts at reunification, there had not been substantial compliance with the case plan by all parties and progress has not been made in alleviating the causes of removal. In June 1995, Mr. Carter established his paternity of Angel. By this time, however, Angel was evaluated and found to be mildly to moderately retarded and was also diagnosed with symptoms of fetal alcohol syndrome. In a subsequent dispositional review, the court determined that she was doing well in foster care. The court additionally noted that the mother had been hospitalized following a suicide attempt and Mr. Carter has expressed some interest, but has not carried through. Finally, In November 1995, CCDCFS filed a motion to modify custody from long term foster care to permanent custody. The guardian ad litem of the children prepared a report and recommendation which stated in relevant part as follows: [Angel] relates to her foster parents as mother and father . Both [Angel and Nakeya] have been in the same foster home for the last two-three years. She has visited with her father, John Carter, on a fairly regular basis since the fall of 1995. She claims the visits are nice and they play some games. However, when it comes to a relationship with John as a parent/father she too is unsure of his role. Her demeanor brightens when she talks of her foster parents, and displays love and regard for them as parents, as does Nakeya. Angel's father, John Carter, has expressed a strong desire to have a firm relationship with her. He seeks custody, but recognizes that he cannot now care for -5- her. Where he lives is not conducive for placement of Angel. He shares his living quarters and does not have total access or control of the apartment. There is no separate room, clothing, bedstead, etc., for Angel. Mr. Carter claims to have stayed in an alcohol abuse program for treatment, and works regularly. He claims not to have pressed for custody sooner due to feeling that Donna (mother) may have been able to clean up her act and recover the children, and he did not wish to oppose that. I cannot be conclusive as to John Carter and Angel. On the one hand he displayed efforts to unite with Angel: alcohol treatment program, regular visitation, estab- lishing paternity, and working on a relationship with Angel (but not as strong as with the foster parents). However, all of this is after some five years of placement in which Angel has been mainly estranged from him and has bonded with her foster family, who have revitalized her life and given her security. John's plan is lengthy (concluding in the Spring of 1997), and calls for a concerted effort by him, Angel and CCDCFS. My concerns are mainly twofold: (1) the problem of the separation of Angel from Nakeya, and (2), the degree of adjustment for Angel to be a full-time part of John's life. Although I feel that John is entitled to a chance, I am not convinced that Angel can handle the insecurity in the meantime - the uncertainty of an ongoing stable home. I cannot promote John's position, but neither can I deny his effort. The court held an evidentiary hearing on June 20, 1996. Mr. Carter appeared with counsel. As is relevant to this matter, the evidence demonstrated that Angel was born in 1992. She is mildly retarded, hyperactive, and needs supervision. Angel's mother tested positive for cocaine use in connection with a subsequent pregnancy. She was also arrested for shoplifting and the children were left in the care of her cousin. Following the mother's release from jail, she did not seek the return of her children and CCDCFS obtained temporary custody. In 1994, they were placed in long-term foster care. Pursuant to the case plan prepared to -6- promote the reunification of the family, the mother was to become drug-free and complete an after care treatment program. She did not complete the after-care program and continued to have relapses of drug use, including instances when she tested positive for drug use on May 6, 1996 and May 28, 1996. In addition she has been admitted to Cleveland Psychiatric Institute five times and is "diagnosed with bipolar schizophrenic, psychoeffective, major depression, substance abuse." (Tr. 16). She was admitted to St. Vincent Charity Hospital in May 1996 in connection with a suicide attempt. The evidence with respect to Mr. Carter demonstrated that he is an alcoholic. The case plan required him to establish his legal paternity of Angel, and to complete parenting and alcohol treatment programs. The evidence demonstrated that Mr. Carter did in fact establish his paternity of Angel in July 1995. He did not complete the parenting program, however. With regard to treatment for his alcoholism, the evidence demonstrated that he was to complete an in-patient treatment program, was to attend ninety meetings of Alcoholics Anonymous in ninety days, and was to maintain sobriety. He completed the in-patient program and attended some Alcoholics Anonymous meetings but had not, by the date of the hearing, completely resolved the issue of his alcoholism. Moreover, he admitted that he had consumed alcohol on the previous evening. The evidence also demonstrated that Mr. Carter rents one room of a house and therefore cannot house Angel. Significantly, he was unaware that she had been diagnosed as mildly retarded. -7- Mr. Carter explained that he does not presently want custody. He asked to be permitted to play a role in Angel's life and asked that the court give him another year to complete the requirements of the case plan. Finally, the evidence demonstrated that Angel is doing well in her foster home placement. She attends a special education program and her foster mother has stated that she is interested in adopting both Angel and Nakeya. No other family members have indicated a willingness or ability to care for the children. On July 12, 1996, the trial court awarded CCDCFS permanent custody of the children and found as follows: The court, having received the appropriate reports, finds that the children's continued residence in or return to the home would be contrary to their best interest and welfare. The court finds that reasonable efforts were made to prevent placement and/or to make it possible for the children to return to their home. For findings as to services provided by Cuyahoga County Department of Children and Family Services and why they were not successful see the case plan. The court finds that the children can not be placed with a relative because relatives are unable or unwilling to care for said children. Upon further consideration, the court finds by clear and convincing evidence that it is in the best interest of the children to grant permanent custody to Cuyahoga County Department of Children and Family Services and the children are not abandoned or orphaned. The court fur- ther finds that the children cannot be placed with their parent(s) within a reasonable time or should not be placed with their parent(s) for the following reasons: following the placement of the children outside the home, the parent(s) has failed continuously and repeatedly for a period of six (6) months or more to substantially remedy the conditions causing the children to be placed outside the home. The parent(s) is/are unable to provide an adequate permanent home for the children in the foreseeable future due to the parent(s) severe and chronic mental illness, and severe chemical dependency. -8- Mr. Carter appeals from this order herein and assigns the following error: THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY OF ANGEL GRANT TO THE CUYAHOGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES WHERE IT WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT DOES NOT PROVIDE CARE, SUPPORT OR A STABLE HOME FOR THE CHILD. Within this assignment of error, Mr. Carter complains that the decision of the trial court is not supported by clear and convincing evidence. He also maintains that the agency sought permanent custody of Angel less than five months after he established paternity and therefore failed to provide him with reasonable time or a reasonable plan to gain custody of Angel. We shall first address the claimed procedural deficiencies regarding the timing of the actions and the promulgation of the reunification plan. As an initial matter, former R.C. 2151.4132 required that a children's services agency seeking permanent custody of a child must have had temporary custody of the child for at least six months immediately preceding the filing of the motion for permanent custody. See In re Hayes (1997), 79 Ohio St.3d 46 syllabus; In re Miller (1995), 101 Ohio App.3d 199, 203. Further, R.C. 2151.412 requires that when a public children's services agency has temporary or permanent custody of a child, it shall prepare and maintain a case plan for that child. See, also, In re Smith (1982), 7 Ohio App.3d 75, 76. R.C. 2151.414 in turn 2 R.C. 2151.412(A) has been amended, effective September 18, 1996, to eliminate this requirement. -9- provides that when such agency seeks permanent custody of a child the trial court must determine, inter alia, whether the agency has made a good faith effort to implement the reunification plan. Id. See, generally, In re Weaver, supra, ( a good faith effort to implement a reunification plan means an honest, purposeful effort, free of malice and the design to defraud or to seek an unconscionable advantage. ) However, this statute also indicates that 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. Accord Elmer v. Lucas County Children's Services Board (1987), 36 Ohio App.3d 241, 243. Applying the foregoing, we note that the record unambiguously demonstrates that CCDCFS did in fact have temporary custody of Angel since 1993, or for well over six months preceding the filing of its motion for permanent custody. Thus, the requirements of former R.C. 2151.412 were not violated. In addition, the record reveals that the agency prepared a case plan in 1993 to promote the reunification and it indicated that Mr. Carter was to become drug and alcohol free. The requirements of R.C. 2151.414 were therefore met. Accordingly, we are unable to credit Mr. Carter's claim that procedural deficiencies occurred below. Turning to the weight of the evidence question which Mr. Carter additionally poses, we note that R.C. 2151.414 provides that a court may grant permanent custody if it determines by clear and convincing evidence that: (1) permanent custody is in the best interest of the child, pursuant to the factors set forth in R.C. -10- 2151.414(D) and other relevant factors; and (2) the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents. See In re Awkal (1994), 95 Ohio App. 309, 315-316. In this instance, we are unable to determine that the judgment of the trial court is against the manifest weight of the evidence. We concur with the trial court's determination that the clear and convincing evidence of record demonstrates that the award of permanent custody CCDCFS is in the best interest of Angel. Pursuant to R.C. 2151.414, it is clear that although Angel is not abandoned or orphaned that she cannot be placed with either parent within a reasonable time, due to the longstanding alcohol related dependency problems of her parents and their inability to provide her with a suitable home. That is, both parents would have significant difficulty in caring for Angel because she requires a closely monitored environment. The mother has shown no interest in her parental responsibilities. Her father has a sincere desire to share in Angel's life but is still in the beginning of a difficult battle with alcoholism and by his own admission will need many more months to complete the recommendations of the case plan. Significantly, he does not completely understand the scope of Angel's special needs. Moreover, Angel has a lengthy history of custody with the CCDCFS, she is in special need of a legally secure placement due to her emotional and intellectual needs, and is functioning well in her foster placement with her other siblings. -11- The award of permanent custody would appear to facilitate her adoption by the foster parents. In accordance with the foregoing, we must reject the assigned error. Affirmed. -12- It is ordered that appellee recover of appellant her 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. ROCCO, J., AND CORRIGAN, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .