In re D.W. , 2022 Ohio 66 ( 2022 )

[Cite as In re D.W., 2022-Ohio-66.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: D.W. C.A. No. 29937
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 20-03-000254
DECISION AND JOURNAL ENTRY
Dated: January 12, 2022
HENSAL, Presiding Judge.
{¶1} Appellant, S.W. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that adjudicated her infant child dependent and
placed the child in the temporary custody of Summit County Children Services Board (“CSB”).
This Court affirms.
I.
{¶2} Mother is the biological mother of D.W., born March 12, 2020. Mother has a
history of involvement with CSB and the juvenile court with her three older children. Although
the older children are not parties to this appeal, their cases are relevant to the adjudication of
D.W.
{¶3} On March 23, 2020, CSB filed a complaint, alleging that D.W. was an abused,
neglected, and dependent child. The supporting facts alleged in the complaint included that
Mother had tested positive for methamphetamine and amphetamine shortly before the child’s
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birth; D.W. was born at 35 weeks’ gestation and had been transferred to the neonatal intensive
care unit (“NICU”) because of prematurity and respiratory failure; and Mother’s three older
children had been adjudicated dependent in other, ongoing juvenile cases and all three remained
placed outside Mother’s custody. After nearly two years of working on court-ordered case plan
services in those cases, Mother still had not gained insight into how her decisions put her
children at substantial risk and her activities negatively impacted the wellbeing of her children.
Mother’s inappropriate caregiving decisions had included repeatedly leaving her young children
alone or with inappropriate caregivers and exposing them to domestic violence in her home.
{¶4} D.W. was initially placed in the emergency custody of CSB and the matter later
proceeded to adjudicatory and dispositional hearings. Following hearings before a magistrate,
D.W. was adjudicated dependent and placed in the temporary custody of CSB. The trial court
adopted those decisions, overruled Mother’s objections to both decisions, and independently
entered judgment adjudicating D.W. dependent and placing the child in the temporary custody of
CSB. Mother appeals and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S FINDING THAT THE MINOR CHILD WAS
DEPENDENT IS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶5} Mother asserts that the trial court’s finding of dependency was against the
manifest weight of the evidence. The trial court found that D.W. was dependent under Revised
Code Sections 2151.04(C) and (D). Section 2151.04(C) defines a dependent child as one
“[w]hose condition or environment is such as to warrant the state, in the interests of the child, in
assuming the child’s guardianship[.]” The focus of a dependency finding under Section
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2151.04(C) is on the child’s situation to determine whether the child is without proper or
adequate care or support. In re R.P., 9th Dist. Summit No. 26836, 2013-Ohio-5728, ¶ 19.
{¶6} Section 2151.04(D) defines a dependent child as one “[t]o whom both of the
following apply:”
(1) The child is residing in a household in which a parent * * * committed an act
that was the basis for an adjudication that a sibling of the child * * * is an abused,
neglected, or dependent child.
(2) Because of the circumstances surrounding the * * * dependency of the sibling
* * * and the other conditions in the household of the child, the child is in danger
of being abused or neglected by that parent * * * .
{¶7} The trial court was required to find that CSB established dependency by clear and
convincing evidence. In re I.K.-W., 9th Dist. Summit No. 29100, 2019-Ohio-2807, ¶ 17, citing
R.C. 2151.35(A)(1) and Juv.R. 29(E)(4). Clear and convincing evidence is that which will
“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶8} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
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{¶9} This Court begins its review of the record by noting that, when the trial court
adjudicated this child dependent, it failed to comply with the statutory requirement that it include
“specific findings as to the existence of any danger to the child and any underlying family
problems that are the basis for the court’s determination that the child is a dependent
child.” R.C. 2151.28(L). Specific factual findings underlying the adjudication of dependency not
only protect the parents’ rights to be informed about the specific basis of the dependency
adjudication, but they also facilitate this Court’s review of the trial court’s adjudication. See In
re I.K.-W., 2019-Ohio-2807, at ¶ 24. Mother has not raised this issue on appeal, however, and
this is not the exceptional case in which this Court will recognize plain error. See In re Z.S., 9th
Dist. Summit No. 29887, 2021-Ohio-2022, ¶ 8. The trial court’s order overruling Mother’s
objections and adjudicating D.W. dependent, and the evidence presented at the hearing,
demonstrate that the dependency adjudication of D.W. was based primarily on Mother’s poor
decision making, which had prevented her from having custody of her older children for the past
two years.
{¶10} Although CSB’s complaint had alleged problems with D.W. associated with
Mother’s drug use, the child’s premature birth, and health problems that required treatment in the
NICU for 12 days, little evidence was presented at the adjudicatory hearing to support those
allegations. Instead, to establish that the environment at Mother’s home and the dependency
adjudications of Mother’s older children posed a continuing threat to newborn D.W., CSB’s
evidence focused primarily on Mother’s ongoing juvenile cases with her older three children.
CSB presented the testimony of the ongoing caseworker assigned to the older children’s cases as
well as certified copies of records from each child’s case. That evidence established that Mother
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had a two-year history with CSB that continued throughout her pregnancy with D.W. and after
the baby’s birth.
{¶11} D.W. has three older siblings: L.B., born March 22, 2010; De.W., born September
23, 2014; and T.W., born February 13, 2019. On January 31, 2018, more than one year before
T.W. was born, L.B. made a 911 call to report that De.W. was suffering a seizure. When police
and EMS arrived at the home, they discovered that the children, then ages 3 and 8 years old,
were home alone. The police removed L.B. and De.W. from Mother’s home pursuant to Rule 6
of the Juvenile Rules of Procedure. Mother worked on a voluntary case with CSB for almost
three months.
{¶12} On May 8, 2018, CSB filed complaints to allege that L.B. and De.W. were
dependent children. CSB alleged, and later proved at an adjudicatory hearing, that it had
received two more intake referrals about Mother leaving the children unsupervised and, when the
police went to check on the children, they found them home alone. When questioned by a CSB
caseworker, Mother stated that she had arranged for other adults to watch her children and
blamed them for leaving her children unattended.
{¶13} The adjudications of L.B. and De.W. also established the allegations in the
complaint that Mother had a long history of involving herself in abusive relationships. Mother
admitted that she was then involved in a relationship with a man, L.C., who was physically and
emotionally abusive to her and that she once jumped out of a moving vehicle to get away from
him.
{¶14} The juvenile court initially allowed L.B. and De.W. to remain in Mother’s
custody under an order of protective supervision, provided she engage in case plan services and
comply with an order that L.C. have no contact with her children. The case plan focused
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primarily on Mother engaging in counseling and parenting classes to improve her understanding
about the needs of her children and how to make proper choices to provide them with a safe and
stable home. Mother was required to engage in mental health services to develop insight into
how her “poor decision making” had affected her children. The goal was for Mother to
ultimately demonstrate that she could safely and appropriately meet the needs of her children.
{¶15} During August 2018, the children were removed from Mother’s custody because
she had left them home alone overnight; she was continuing her relationship with L.C. and
allowing him to have contact with the children; and she was pregnant with L.C.’s child. L.B. and
De.W. were placed in the temporary custody of CSB. Both children were placed in the home of
Mother’s godmother (“Godmother”).
{¶16} Mother continued in counseling, which focused on her developing insight into
safe and age-appropriate supervision of her young children. Because Mother appeared to be
making progress on the case plan goals, she was later granted some unsupervised time with her
children. During her unsupervised time, Mother was expected to transport them to and from
school and any medical appointments. Although Godmother offered to help, Mother often
declined her assistance and instead left the children unattended and/or did not timely get them to
or from school or medical appointments. For example, one school day, Godmother had offered
to help Mother with L.B.’s transportation, but Mother declined. Mother apparently got delayed
at another appointment but did not notify anyone that she would not be able to pick up L.B. after
school. Mother later stated that her cell phone’s battery had died, so she could not contact the
school or anyone else. Moreover, she went home to charge her phone before she went to the
school, so Mother was almost two hours late picking up L.B. after school that day.
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{¶17} On another occasion, Mother called L.B. off sick from school, even though she
had no legal authority to do so. She did not inform Godmother that she had done so and later left
L.B. at home with a man she barely knew who has a criminal record. Mother did not dispute that
there were several other times that she failed to supervise her children or get them to or from
school or scheduled appointments. CSB remained concerned that, not only was Mother failing to
meet the needs of her children, but she also did not seek assistance from Godmother, who was
willing and able to help her.
{¶18} On February 13, 2019, Mother gave birth to T.W., who was removed from her
custody shortly afterward. During the months leading up to T.W.’s birth, Mother continued to
demonstrate an inability to properly care for her older children. The initial complaint, filed
shortly after T.W.’s birth, was dismissed due to time constraints. CSB filed a new complaint on
May 13, 2019. The complaint alleged that CSB had initially proposed a voluntary safety plan,
which included Mother and T.W. living with Godmother, who was still providing a temporary
placement for Mother’s older children. After T.W.’s birth, however, Godmother informed CSB
that she could not provide a placement for T.W. because she worked a second shift job and was
not able to meet the demands of caring for a newborn baby who did not sleep through the night.
T.W. was later adjudicated a dependent child and placed in the temporary custody of CSB.
{¶19} Mother worked on the same case plan goals for another year. Although she
participated in counseling, Mother continued to exercise poor judgment that negatively affected
the wellbeing of her children. For example, in violation of the juvenile court’s no contact order,
Mother continued to allow her children to have contact with L.C. On one occasion, while she
was pregnant with D.W., Mother allowed L.C. into her home and an incident of domestic
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violence ensued, which required police intervention. It was unclear whether Mother was injured
during that altercation.
{¶20} Nearly two years after the oldest two children had been removed from Mother’s
custody and only two months before D.W. was born, Mother continued to demonstrate a lack of
decision-making skills necessary to provide a home for young children. The trial court observed
following a hearing during January 2020, that Mother was able to articulate an understanding of
how her poor choices posed safety risks to her children, but she was still unable to demonstrate
an ability and/or willingness to make day-to-day decisions for the welfare of her children. In
addition to leaving her children unsupervised, the trial court expressed concern that Mother
continued to involve herself and her children with unsuitable adults who posed a threat to their
safety. Specific examples given by the court included that Mother repeatedly violated the no
contact order with L.C. and once left her children alone in a car with a neighbor who had a gun
in his vehicle that was visible to the children.
{¶21} The trial court also noted that Mother had a long history of failing to pay her rent
on time. Mother continually paid her rent late but did not reach out to her landlord to make
payment arrangements. Instead, the CSB caseworker stepped in on Mother’s behalf to make
payment arrangements to prevent Mother’s eviction. Evidence would later reveal that Mother’s
rent was increased because of repeated late rent payments and her failure to attempt to work with
the landlord on a payment plan.
{¶22} Mother continued to have trouble getting her older children to and from school
and medical appointments in a timely manner and she continued to pay her rent late. By the time
of D.W.’s birth, Mother’s unsupervised time with her older children had been suspended because
she continued to drive them, even though she did not have a valid driver’s license, and the
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caseworker had repeatedly warned her not to drive. Despite two years of working on case plan
services, Mother continued to use poor judgment regarding her children. At the time the
complaint pertaining to D.W. was filed, Mother’s only interaction with her three older children
was limited to supervised visitation because she had failed to demonstrate that she could safely
care for them alone.
{¶23} Mother gave birth to D.W. on March 12, 2020. The child was born five weeks
early and weighed only five pounds, nine ounces. At the hospital prior to D.W.’s birth, a
toxicology screen was performed on Mother, which revealed the presence of both amphetamine
and methamphetamine in her system. The doctor who delivered D.W. testified that Mother’s
prenatal use of either drug increased the chances that she would deliver a pre-term baby of a low
birth weight. The doctor further explained that the positive drug screen would affect D.W.’s
post-natal care because he would have to be observed for several days for symptoms of
withdrawal from the drugs that Mother had taken.
{¶24} Although CSB offered no evidence that Mother’s prenatal drug use had, in fact,
caused actual physical harm to D.W., this is not an appeal from an adjudication of abuse. See In
re Baby Boy Blackshear, 90 Ohio St.3d 197, 199-200 (2000) (reasoning that a test confirming the
presence of illegal drugs in an infant’s system at birth demonstrates that the child suffered a
physical injury caused by the mother). This appeal is from a dependency adjudication under
Sections 2151.04(C) and (D), which focus not on actual harm to the child but on the child’s
environment and whether the circumstances surrounding the adjudications of D.W.’s older
siblings posed a threat to D.W. of being neglected by Mother.
{¶25} In this case, the evidence that Mother had used both amphetamine and
methamphetamine while pregnant with D.W., coupled with all the evidence from her older
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children’s cases, demonstrated that Mother continued to struggle with an inability or
unwillingness to make appropriate choices to safeguard the wellbeing of her children. Although
drug use by Mother was not identified as a problem in the other children’s cases, Mother’s
history of exercising poor judgment with regard to the safety of her children was. Mother’s use
of illegal drugs while pregnant with D.W. only further demonstrated this.
{¶26} Mother has failed to demonstrate that the trial court lost its way in finding clear
and convincing evidence that D.W. was a dependent child under Revised Code Sections
2151.04(C) and (D). Her assignment of error is overruled.
III.
{¶27} Mother’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
ADAM M. VANHO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
BRIAN ASHTON, Attorney at Law, for Appellee.
HOLLY FARAH, Guardian ad Litem.
TODD CONNELL, Guardian ad Litem.