In re S.W. Children , 2011 Ohio 1353 ( 2011 )

[Cite as In re S.W. Children, 2011-Ohio-1353.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
S./W. CHILDREN Hon. Julie A. Edwards, J.
Hon. John W. Wise, J.
Case No. 2010CA00321
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2008JCV00849
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 21, 2011
APPEARANCES:
For Appellee For Appellant
LISA A. LOUY AARON KOVALCHIK
Legal Counsel 116 Cleveland Ave NW
Stark County Department Suite 808
Of Job and Family Services Canton, Ohio 44702
221 Third Street SE
Canton, Ohio 44702
Stark County, Case No. 2010CA00321 2
Hoffman, P.J.
{¶1} Appellant Francesca Steadman (“Mother”) appeals the October 19, 2010
Judgment Entry and October 19, 2010 Findings and Fact and Conclusions of Law
entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated her parental rights, privileges and obligations with respect to her four minor
children and granted permanent custody of the children to Appellee Stark County
Department of Job and Family Services (“SCDJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Mother is the biological mother of G.S. (DOB 10/8/98), D.W. (DOB
12/29/01), S.W. (DOB 10/24/05), and E.W. (DOB 6/19/07). On July 24, 2008, Mother
and David Wise, Jr., father of D.W., S.W., and E.W., were arrested and incarcerated for
felony intimidation of a witness.1 The condition of Mother’s home was unacceptable for
the children. The maternal grandmother reported she had been providing care for the
children as Mother was not doing so. SCDJFS permitted the children to stay with
maternal grandmother. However, on July 27, 2008, SCDJFS learned maternal
grandmother had threatened to kill the children and put antifreeze in their bottles.
Maternal grandmother was arrested for aggravated menacing and endangering
children. The children were removed from her home and were found to be infested with
lice. The trial court conducted an emergency shelter care hearing on July 30, 2008, and
placed the children into the temporary custody of SCDJFS.
{¶3} The trial court conducted an adjudicatory hearing on October 8, 2008. At
that time, SCDJFS moved to delete the allegations of neglect, which the trial court
1
David Wise, Jr. and the father of G.S. are not parties to this Appeal.
Stark County, Case No. 2010CA00321 3
granted. Mother stipulated to a finding of dependency. The trial court appointed
Attorney Brent A. Barnes as guardian ad litem for the children.
{¶4} SCDJFS filed a motion for permanent custody on June 11, 2009. The trial
court conducted a dispositional review hearing on August 18, 2009, at which time the
trial court extended temporary custody for six months as Mother was making progress
on her case plan. The trial court subsequently extended temporary custody an
additional six months until July 28, 2010. SCDJFS refilled its motion for permanent
custody on June 3, 2010. Mother filed a motion for a return of custody to her and for the
termination of SCDJFS’s involvement.
{¶5} The trial court conducted a hearing on the motion for permanent custody
on October 14, 2010.
{¶6} Wanda Pounds, the ongoing family service worker with SCDJFS assigned
to the case, testified, via a pre-adjudicatory order, Mother was to have a psychological
evaluation/parenting evaluation at Northeast Ohio Behavioral Health. The order also
required David Wise, Jr. to have a psychological evaluation at Melymbrosia. Mother
had her psychological evaluation/parenting evaluation conducted at Melymbrosia.
SCDJFS accepted the change of mother’s evaluation by Melymbrosia as the evaluation
had already been completed. The Melymbrosia report revealed Mother was in the low
range mentally and was unable to parent the children independently. The evaluator
recommended Mother have long-term parenting instructions and individual therapy, but
even with that, the evaluator did not feel Mother could handle parenting on her own.
{¶7} Mother attended Goodwill parenting, and received a certificate of
attendance. The parenting instructor noted Mother struggled to pay attention to all of
Stark County, Case No. 2010CA00321 4
the children, recalling several instances during which Mother was more involved with
the two youngest children and left the older two children to play independently or to play
with other children. On one occasion, D.W., the oldest daughter, struggled to get
Mother’s attention. After saying, “Mom”, a number of times, the child sat down and
cried for the last half-hour of the visit. While engaged in the Goodwill parenting
program, Mother was arrested for complicity to theft and obstructing official business.
{¶8} Pounds recalled a conversation with Mother regarding her need for a bus
pass as her car had been impounded. Mother could not get her car out of impound
because she did not have a driver’s license. Mother then admitted she “skirted” around
Alliance as not to run into the police and get in trouble for driving without a license.
{¶9} Mother’s case plan required her to attend individual counseling. Mother
started sessions at Trillium. The therapist reported Mother was not making much
progress. After SCDJFS filed its first motion for permanent custody, Mother began
doing some meaningful work and started to make progress. The therapist indicated
Mother had successfully completed the Trillium program, but felt her issues could be
better addressed with a more intensive parenting program. At that point, SCDJFS
contacted Goodwill Home-based to begin a home-based parenting program with
Mother. Mother completed the coursework and met with the instructor regularly.
Although Mother showed some frustration in balancing all four children, the Goodwill
instructor felt Mother was doing enough to proceed to unsupervised weekend
visitations. After the first weekend visit, the children reported maternal grandmother had
spent the weekend at Mother’s home. Mother had been informed on numerous
occasions maternal grandmother was not to have contact with the children. In addition,
Stark County, Case No. 2010CA00321 5
Pounds asked Mother not to take the children out excessively over the weekend as
S.W. was recovering from pneumonia. Nonetheless, Mother took the children out a
number of times. When the SCDJFS aid arrived ten minutes early to pick up the
children, Mother had the children waiting at the door with their coats on. Pounds
described Mother as frustrated and eager for the children to leave.
{¶10} During this time, Mother became involved with an individual named Ryan
Collins with whom she had her fifth child, C.C.2 Mother’s probation officer showed up
unannounced and Mother let him in only after he threatened to call the police and
violate her probation. While walking through the home, the probation officer found
Collins in one of the bedrooms, wearing female underwear with his hands down his
pants. After looking into Collins’ history, the probation officer learned Collins had a long,
ongoing history of inappropriate sexual behavior with young children. Pounds also
recalled when Mother became pregnant with C.C., she denied she was pregnant, and
took steps to avoid detection of the pregnancy and the birth of the child. At the time of
the hearing, Mother was still involved with Collins. Due to her involvement with Collins
and allowing the children to be with maternal grandmother, Mother’s unsupervised
weekend visits were terminated. Goodwill home-based parenting terminated Mother
from their program.
{¶11} Pounds also testified during the best interest portion of the hearing.
Pounds stated the children are Caucasian. G.S., the oldest, has been diagnosed with
ADHD, and is currently receiving therapy through Children and Adolescent Service
Center. During the summer, he spent time in therapeutic groups, learning social skills,
2
C.C. is the subject of a separate Appeal.
Stark County, Case No. 2010CA00321 6
and anger management skills. G.S. also has some cognitive issues and has an
independent education plan at school, but his therapist feels he needs a more extensive
evaluation. S.W., who was five at the time of the hearing, has speech delays and a lazy
eye. The girl recently had tubes implanted in her ears. She attends Head Start and is
receiving speech services, and her speech is improving rapidly. E.W., who was three at
the time of the hearing, has temper tantrums, but nothing which requires any
therapeutic services. Pounds indicated there were no issues with eight year old D.W.
{¶12} The three oldest children, G.S., D.W., and S.W., are in the same foster
home and have been there since July, 2008. In August, 2010, E.W. was moved into a
placement with C.C. All four children are doing well in their placement. Pounds
indicated SCDJFS has a prospective adoptive situation and the family is interested in
adopting all five children. Pounds also noted, although the children are bonded with
Mother, the children need a permanent home. Adoption would give the children stability
and safety, which remain issues in Mother’s home.
{¶13} Via Judgment Entry filed October 19, 2010, the trial court terminated
Mother’s parental rights, privileges and obligations with respect to the children, and
granted permanent custody of the children to SCDJFS. On the same day, the trial court
filed Findings of Fact and Conclusions of Law.
{¶14} It is from this judgment entry and the trial court’s findings of fact and
conclusions of law, Mother appeals, raising as her sole assignment of error:
{¶15} “I. JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS
OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF
Stark County, Case No. 2010CA00321 7
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶16} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.1(C).
I
{¶17} In her sole assignment of error, Mother contends the trial court’s finding a
grant of permanent custody to SCDJFS would be in the children’s best interest was
against the manifest weight of the evidence.
{¶18} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments
supported by some competent, credible evidence going to all the essential elements of
the case will not be reversed as being against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
{¶19} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
Stark County, Case No. 2010CA00321 8
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's parents; (b) the
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶21} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
the child as expressed directly by the child or through the child's guardian ad litem, with
due regard for the maturity of the child; (3) the custodial history of the child; and (4) 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.
{¶22} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Stark County, Case No. 2010CA00321 9
{¶23} If the child is not abandoned or orphaned, then the focus turns to whether
the child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Under R.C. 2151.414(E), the trial court must
consider all relevant evidence before making this determination. The trial court is
required to enter such a finding if it determines, by clear and convincing evidence, that
one or more of the factors enumerated in R .C. 2151.414(E)(1) through (16) exist with
respect to each of the child's parents.
{¶24} As set forth in our Statement of the Facts and Case, supra, all of the
service providers, after working with Mother, determined Mother was unable to parent
the children independently. During visits, Mother was unable to give her attention to all
of the children. D.W. became so frustrated trying to get Mother’s attention, she cried for
the last half-hour of one visit. When service providers believed Mother had progressed
to unsupervised weekend visitation, Mother went against Wanda Pounds’ directives.
Mother allowed maternal grandmother to stay with the children after maternal
grandmother had been charged with four counts of child endangering. Mother also
became involved with Collins, who has a long history of sexually inappropriate behavior
involving children. Mother either chose not to incorporate what she learned into her
parenting or was unable to do so.
{¶25} At the time of trial, the children had been in the custody of SCDJFS for
more than two years. G.S. was diagnosed with ADHD, and was receiving the
appropriate services. S.W. had delayed speech, but such was addressed with surgery
and speech therapy. All of the children are doing well in their placements and are
bonded with one another. The foster family caring for E.W. and C.C. are interested in
Stark County, Case No. 2010CA00321 10
adopting all five of the children. Pounds testified the children’s need for stability and
security outweighed the bonds that would be broken due to a grant of permanent
custody.
{¶26} Based upon the foregoing, we find the trial court’s finding it was in the
children’s best interest to grant permanent custody to SCDJFS was not against the
manifest weight of the evidence.
{¶27} Mother’s sole assignment of error is overruled.
{¶28} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is affirmed.
By: Hoffman, P.J.
Edwards, J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ John W. Wise______________________
HON. JOHN W. WISE
Stark County, Case No. 2010CA00321 11
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: :
:
S./W. CHILDREN :
:
: JUDGMENT ENTRY
:
:
: Case No. 2010CA00321
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Family Court Division, is affirmed. Costs assessed to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ John W. Wise______________________
HON. JOHN W. WISE