Ohio Appellate Reports


IN RE A.S., Unpublished Decision (12-21-2006)
2006-Ohio-6774 IN RE: A.S. No. 87895. Court of Appeals of
Ohio, Eighth District, Cuyahoga County. RELEASED: December
21, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Cuyahoga County Court of
Common Pleas, Juvenile Division. Case No. AD-04901930.


Gregory T. Stralka, Cleveland, Ohio.

Sidney Glick, Akron, Ohio. ATTORNEY FOR APPELLANT.

William D. Mason, Cuyahoga County Prosecutor, James M.
Price, Assistant Prosecuting Attorney, Cleveland, Ohio.

Janna R. Steinruck Assistant Prosecuting Attorney,




{¶ 1} Defendant-appellant, J.G.[fn1] (“Father”),
appeals from the decision of the Juvenile Court that
awarded permanent custody of his son A.S. to the Cuyahoga
County Department of Children and Family Services (“CCDCFS”
or the “agency”). For the reasons that follow, we affirm.

{¶ 2} A.S. was born prematurely and remained
hospitalized for a period of time. On October 15, 2004,
CCDCFS petitioned the Juvenile Court for temporary custody
of A.S., which the court granted by order dated January 5,
2005. A.S. was placed in foster care on January 11, 2005.
CCDCFS filed a case plan with a stated permanency goal of
reunification. The plan applied to both Father and A.S.’s
mother. Father was required to actively participate in a
parenting program; to make provisions for a newborn child;
to refrain from using alcohol or drugs; and to complete an
alcohol and drug assessment.

{¶ 3} On September 6, 2005, CCDCFS moved to modify
the order of temporary custody to permanent custody. During
proceedings before the Juvenile Court on September 13,
2005, testimony established CCDCFS’s involvement with A.S.
for almost a year. During that time, Father was offered
visitation and it was alleged that for a period of four
months, Father made no contact with A.S. The agency further
offered parenting classes and drug and alcohol classes,
which they maintain Father failed to satisfactorily
complete. A.S. spent a brief period in the custody of a
paternal cousin, who returned him to foster care. Based on
this testimony, the Juvenile Court concluded that CCDCFS
had made reasonable efforts to reunify and to meet the
child’s needs. The Juvenile Court at that time denied
Father’s requests for increased visitation due to Father’s
failure to attend many of the previously scheduled visits.

{¶ 4} Toni Fecko, a counselor in the chemical
dependancy program from Catholic Charities, testified at
the evidentiary hearing. Fecko stated that Father came to
two classes of a six-week program. She further identified
Father’s drug screen result as positive for cocaine. Fecko
stated Father tested positive for cocaine on a subsequent
date, which Fecko referred to as a “relapse.” (CCDCFS Ex. 1
and 2 are Father’s positive drug test results.) Father
admitted to selling cocaine but denied using it. Father
speculated that he tested positive for drugs because he
stored bags of cocaine in his mouth to avert apprehension
by the police for drug dealing.

{¶ 5} Due to the relapse, Fecko recommended a higher
level of care for Father than was initially proposed in the
case plan. This included intensive outpatient treatment.
The initial proposal for the less intensive group therapy
was the result of Father’s alleged dishonesty during his
drug assessment. Father stopped participating in the
treatment program following his relapse on March 22, 2005,
despite numerous calls by Fecko to the social worker.

{¶ 6} Foster Parent described A.S. as a calm baby.
A.S. remained in his care except for a period of about five
months when CCDCFS placed A.S. with a paternal relative.
A.S. returned to foster care in August 2005, where he

{¶ 7} Foster Parent described A.S.’s reaction to
visits with Father as disruptive to his sleep patterns,
causing him to whimper in his sleep. It would take A.S.
approximately two days to “settle down” back into his “more
relaxed pattern.”

{¶ 8} A.S. reportedly gets along well with the other
children in the foster home, in a sibling-type
relationship. Foster Parent is unaware of Father sending
A.S. any cards or gifts. Foster Parent expressed a desire
to adopt A.S. in the event permanent custody was granted to

{¶ 9} Maureen Schroeck, an early intervention
specialist for the Cuyahoga County Board of Mental
Retardation and Developmental Disabilities, testified
concerning her involvement with A.S. and his parents.
Schroeck’s duties include ongoing assessments, parent
training, and child evaluation. Her initial contact with
A.S. was in October 2004. She observed A.S.’s visitation
with his biological parents in October 2005 for a period of
one hour. A.S. was very upset and cried throughout most of
the visit. A.S. would not take a bottle from either parent.
A.S. tended to favor Father over the biological mother.

{¶ 10} According to Schroeck’s January 2006
assessment, A.S. was within range in all developmental
areas except his communication skills. Schroeck described
A.S’s interaction with his foster family as “wonderful,
typical, loving family. Responsive, engaging the child.”

{¶ 11} Amy Justice, a clinical psychologist
contracted through Cuyahoga County Courts, conducted a
psychological evaluation of A.S’s biological mother
(“Mother”). Justice opined that Mother qualified for a
diagnosis of mild mental retardation. Justice offered no
testimony relevant to Father.

{¶ 12} CCDCFS also offered the testimony of its
social worker, Kelly Lawlor. Lawlor was assigned to A.S. in
September 2004. Lawlor developed the case plan. A.S. has
been in agency custody since January 2005, roughly his
entire life. A.S. entered agency custody upon his release
from the hospital following his premature birth.

{¶ 13} Lawlor placed A.S. with Foster Parents. In
April 2005, A.S. was removed to the care of a paternal
relative. The paternal relative, however, notified Lawlor
in August 2005 that she could not manage A.S.’s care and
requested his removal. A.S. was returned to his original
Foster Parents.

{¶ 14} Lawlor included both biological parents in
the case plan. The plan required parenting classes for both
parents, substance abuse treatment, and employment.

{¶ 15} Father was referred to parenting class
specific to fathers. He completed less than half of the
program. Lawlor made a second referral for the parenting
service but by the time of evidentiary hearing, Father had
still not completed the program. Although she received some
positive feedback, Father’s attendance remained only

{¶ 16} It was recommended that Father complete an
education component concerning substance abuse and he was
referred to Catholic Charities. He did not complete the
program and due to positive drug tests was requested to do
a step-up. Despite encouragement from Lawlor to return for
treatment, Father never returned. The referral expired,
which required Father to submit to another assessment. From
June 2005, Lawlor referred Father eight times for an
assessment but he failed to show up for any of them. While
Lawlor acknowledged Father relied on public transportation,
she was adamant that Father never showed up for any of the

{¶ 17} Lawlor offered Father employment programs and
encouraged him to utilize community services and job
boards. Father reported being self-employed but never
provided any verification of employment.

{¶ 18} Lawlor stated that Father was capable of
satisfying basic needs as he had public housing.

{¶ 19} Visitation was also a component of the case
plan. The initial schedule provided for weekly visits on
Fridays for two hours in a neutral location. Visits were
periodically re arranged to accommodate transportation, the
foster family, and the parents. Lawlor stated that out of
55 scheduled visits, the biological parents either missed or
did not attend 32 of them. On four other occasions they
arrived approximately one-half hour late.

{¶ 20} Lawlor observed some of the visits between
A.S. and the parents and described them as “horrible.” A.S.
would cry for “two full hours, hysterical, blood curdling
screams.” In her opinion, Father rejected her advice,
saying he knew what his son needed. She also claimed Father
would cuss at her, raise his voice, holler during the
visits, and punch walls. This continued until April when
the child was placed in the custody of a relative until

{¶ 21} Although A.S. was in the custody of a
relative, visits were to continue to be supervised through
the agency. Lawlor reports no visits between April and
August. The parents did not contact Lawlor concerning
visitation again until A.S. was returned to agency custody.

{¶ 22} In September 2005, Lawlor observed a visit
with the parents, which she described as “one of the better
visits.” Although the parents promised cake and presents
for A.S. on a following visit, they arrived with only a
card and a half-eaten cake.

{¶ 23} The more recent visits between A.S. and
parents were going “okay.” Father likes to hold A.S., yet,
Lawlor reports that the parents have told A.S. that he
“looks like the devil, that he’s spoiled.” On the positive
side, Lawlor compliments Father’s interaction and use of a
child-like voice and that he likes to hold and snuggle the
child. Father also makes a game out of feeding A.S. and
plays with a pull toy with A.S.

{¶ 24} Lawlor also testified that Father said he
will not complete the services required by the case plan.

{¶ 25} The agency considered relative placements for
A.S., including the paternal relative who returned A.S. to
the agency following a brief period of custody. Two other
paternal relatives were contacted but were not interested
in custody. The only appropriate maternal relative is the
maternal grandmother who, according to Lawlor, was adamant
that she did not want to raise her daughter’s babies.[fn2]

{¶ 26} Paternity was established for A.S. in
November 2004. Although mother had previous children
removed from her custody, they were not the offspring of
Father. The agency initially sought only temporary custody
of A.S. to allow Father the opportunity to provide for him.

{¶ 27} A.S.’s maternal grandmother also testified.
She has custody of another grandchild and claimed to be in
a position to assume custody of A.S. as well. She has a
two-bedroom residence but would be willing to relocate. Her
own 17-year-old child would assist in caring for the
children. She would also abide by any restrictions placed on
her concerning interaction with Mother. Maternal
grandmother admitted that Mother sometimes stays in her
house and that she sometimes allows her to watch the
children. Maternal grandmother stated that she and the
biological parents would visit with A.S. during the time he
was in the custody of the paternal relative.

{¶ 28} Following the evidentiary hearing on the
motion for permanent custody, the court issued findings of
fact supporting its award of permanent custody. Father
appeals assigning four assignments of error for our review.
Assignments of Error II and IV were based on findings
relative to Mother only and therefore, are overruled as
moot. We address the remaining assignments of error
together below.

{¶ 29} “I. The Department of Children and Family
Services failed to establish that Mr. George failed to
substantially remedy the condition that caused the removal
of the child.

{¶ 30} “III. The Department of Children and Family
Services failed to establish that Mr. George showed a lack
of commitment toward the child by failing to regularly
support, visit, or communicate with the child.”

{¶ 31} In these assignments of error, Father
contends that the trial court erred when it granted
permanent custody of A.S. to CCDCFS in the absence of clear
and convincing evidence. CCDCFS maintains the court did not
abuse its discretion when it determined the best interest of
the child would be served by granting CCDCFS permanent

{¶ 32} In considering an award of permanent custody,
the court must first determine, by clear and convincing
evidence, whether the child can be placed with a parent
within a reasonable time or should not be placed with the
parent. R.C. 2151.414(B)(1)(a). The court is required to
enter a finding that the child cannot be placed with a
parent within a reasonable time if any factors set forth in
R.C. 2151.414(E) apply, including the following:

{¶ 33} “(1) Following the placement of the child
outside the child’s 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
failed continuously and repeatedly to substantially remedy
the conditions causing the child to be placed outside the
child’s 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.

{¶ 34} ”

{¶ 35} “(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.”

{¶ 36} The trial court enumerated R.C.
2151.414(E)(1) and (4), which would be applicable to

{¶ 37} The court found, despite reasonable and
diligent efforts by the agency, the parents failed to
remedy the problems that initially caused A.S. to be placed
outside the home. Further, the court found the parents
continuously and repeatedly failed to substantially remedy
the conditions that caused A.S.’s removal. The court cited
the parents’ failure to complete the case plan, including
the provisions concerning chemical dependency. It was
unrefuted that Father failed to complete the case plan
designed for reunification. He did not complete the
parenting classes, the substance abuse treatment program,
and there was no evidence of verified employment. In fact,
CCDCFS made eight referrals for assessment to assist Father
in accomplishing the chemical dependency aspects of the
case plan. Father failed to show up for any of them. And,
contrary to Father’s assertion, his repeated failure to
comply with the drug treatment/therapy provisions of the
plan was not the only aspect of the case plan that he did
not complete. Thus, the court’s finding under this
provision is sufficiently supported by clear and convincing

{¶ 38} The trial court also determined there was a
demonstrated lack of commitment toward A.S. by failing to
regularly support, visit, or communicate with him when able
to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for A.S. Father takes
exception with the court’s reference that the “parents
attended 13 full visits out of 55 possible visits.” He,
however, does concede that he missed 32 of the 55 scheduled
visits. The record further suggests the court was referring
not to visits “missed” but the number of “full visits”
attended. For example, the record reflects that the parents
were frequently late to the scheduled visits, yet the
social worker would allow them to spend the remaining time
with A.S., thus constituting a partial visit. In any case,
attending a little over half of the scheduled visits with
ones infant child does not establish a convincing
commitment on Father’s part to support, visit, or
communicate with him. Accordingly, the finding of the trial
court is supported by clear and convincing evidence.

{¶ 39} Next, the trial court must determine whether
it is in the best interest of the child to grant permanent
custody. R.C. 2151.414(B) & (D). The trial court found that
A.S. could not be placed with either parent within a
reasonable time or should not be placed with either parent
within a reasonable time. The court further noted that A.S.
was removed on October 4, 2004 and has been in the custody
of CCDCFS continuously since that time.

{¶ 40} In determining the best interest of the child
during the permanent custody hearing, the court must
consider the factors listed in R.C. 2151.414(D), which
include the reasonable probability the child will be
adopted, the interaction of the child with the child’s
parents, siblings, and foster parents, the wishes of the
child, the custodial history of the child, and the child’s
need for a legal, secure, permanent placement.

{¶ 41} Here, the court’s findings included that it
considered the R.C. 2151.414(D) factors. Although A.S. was
incapable, due to his young age, of expressing his wishes,
the court did consider the report of the Guardian Ad Litem.

{¶ 42} The evidence in the record, set forth in
detail above, includes that A.S. was doing well in his
foster placement, bonding with the other children of the
home in sibling-type relationships. A.S. has been in agency
custody virtually his whole life following his premature
birth. Except for a five-month period, A.S. has been in the
constant care of the Foster Parents, who expressed a desire
to adopt him. The court also considered relative placements
but determined none to be suitable. The record supports the
trial court’s finding that placement with the maternal
grandmother was not suitable, including the likelihood she
would leave A.S. alone with the mother. Accordingly, there
is clear and convincing evidence that supports the trial
court’s determination that permanent custody is in the best
interest of the child.

{¶ 43} We find that the trial court made its
findings according to the statutory guidelines of R.C.
2151.414 and that these findings are supported by clear and
convincing evidence. Therefore, these assignments of error
are overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant its
costs herein taxed.

The court finds there were reasonable grounds for this

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.



[fn1] The parties are referred to herein by their initials
or title in accordance with this Court’s established policy
regarding non-disclosure of identities of juveniles.

[fn2] Just prior to the hearing, maternal grandmother
expressed a willingness to obtain custody with mother as a
secondary caregiver with shared responsibilities. The
agency was in the process of exploring this possibility.
The concerns of this placement included missed doctor’s
appointments, size of the residence, and the hygiene,
discipline, and interaction of the children.