In re T.W. , 2020 Ohio 4712 ( 2020 )

[Cite as In re T.W., 2020-Ohio-4712.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: T.W., :
(F.N., :
No. 19AP-700
(Defendant-Appellant). : (C.P.C. No. 16JU-015184)
: (REGULAR CALENDAR)
D E C I S I O N
Rendered on September 30, 2020
On brief: Yeura R. Venters, Public Defender, and Ian J.
Jones, for appellant.
On brief: Sharon K. Carney, for appellee Franklin County
Children Services.
On brief: William T. Cramer, for appellee T.W.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, J.
{¶ 1} Appellant-mother F.N. appeals the October 8, 2019 order of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch granting
the motion by appellee Franklin County Children Services (hereinafter "FCCS") for
permanent custody of her son, the minor T.W.
{¶ 2} T.W. has been in the custody of FCCS since December 21, 2016. (Dec. 21, 2016
Compl. at 4). F.N. is an immigrant from Africa and she has resided in the U.S. for 16 years.
The whereabouts of T.W.'s father C.T. are unknown. The original dependency complaint
alleged that FCCS had opened a case because of T.W.'s extreme behaviors at school,
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including flipping desks, throwing chairs, crayons, and scissors, kicking teachers and
students, and harming other students. T.W. had been diagnosed with ADHD, ODD,
disruptive disorder NOS, and a conduct disorder. F.N. refused to consent to an I.E.P.
investigation for T.W., refused to medicate T.W. for his diagnosed disorders, and refused
to have T.W. further evaluated by his school.
{¶ 3} Based upon concerns that T.W. was being left at home alone, police were
dispatched to the home for a wellness check on December 20, 2016. T.W., who was at the
time 6 years old, was found at home alone. He reported that F.N. was at work. The home
was found to be messy without clear pathways and lacking in food, and the stovetop was
burning bright red and unattended. F.N. arrived at home while the police and a FCCS
worker were present and claimed that she had been grocery shopping, although she had no
groceries with her. T.W. was taken into emergency custody and a dependency complaint
was filed.
{¶ 4} T.W. had difficulty in several different foster placements and, at a
continuance hearing on February 28, 2017, T.W.'s guardian ad litem reported that he was
already in his third placement at the Hannah Neil Children's Center. On March 17, 2017,
the parties agreed to a finding that T.W. was in a state of dependency and a grant of
temporary custody to FCCS. A case plan was adopted that included a requirement that F.N.
would "comply with any other assessments that are deemed necessary * * *." (Mar. 17, 2017,
Tr. at 7). T.W. was at the Hannah Neil Children's Center until May 29, 2017, when he was
placed in a treatment foster home in Hamilton County, Ohio. He has remained in this home
ever since.
{¶ 5} On August 2, 2017, the managed care provider National Youth Advocate
Program (hereinafter "NYAP") filed a motion to be made a party to the action, to modify
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the case plan to require F.N. to complete parenting and mental health assessments, and to
require F.N. to follow any recommendations of those assessments. That motion was
granted and the case plan was amended to include those requirements on November 21,
2017. In her annual report to the court in December 2017, T.W.'s guardian ad litem
recommended that he be transitioned to a foster home in Columbus, but also stated that
she "does not believe Mother has any difficulties with comprehending case plan objectives
– she simply does not agree that her child should be in placement." (Dec. 18, 2017 Guardian
ad Litem Report to the Court at 3). F.N. refused to complete a mental health assessment.
{¶ 6} NYAP and FCCS subsequently requested that visits be suspended, based on
misconduct at visits by F.N. The caseworker described the incidents as follows:
[T]his past Monday, the child did refuse to come to the visit. I
spoke to the child myself. I tried to explain this to [F.N.] and
she became extremely upset. She grabbed my bag off of - - like
I was wearing it around my neck, she grabbed that and then I
tried to leave stating that the visit is cancelled due to the child
not wanting to come and she would not let me leave. We ended
up having to call police to escort me out of the building.
(Dec. 7, 2018 Tr. at 5-6). As a result of this incident, the magistrate granted the motion and
suspended in-person visits. Id. The magistrate also appointed an attorney for T.W., as the
guardian ad litem was "not in agreement with [T.W.] returning home and he has indicated
that he loves his mother and he wants to go home." Id. at 3.
{¶ 7} F.N. consistently refused to participate in the case plan or accept that her
actions were at all responsible for T.W. not being returned to her custody. The guardian ad
litem's report, filed December 6, 2018, states that she "has not had a meaningful
conversation with [F.N.] since March of this year. Each court interaction with [F.N.] since
March 2018 (June 2018, July 2018 and October 2018) [F.N.'s] behavior has declined. She
repeatedly states that she is [T.W.'s] Mother and that as a result she should have custody.
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She has repeatedly refused to take a psychological assessment. When this writer attempts
to speak to her she refuses and instead calls this writer names for not recommending that
her son be returned." (Dec. 6, 2018 Guardian Ad Litem Report at 4).
{¶ 8} At the trial on the FCCS motion for permanent custody, the evidence
demonstrated that despite the fact that a mental health assessment was made an order of
the case plan "due to mother's erratic behaviors when engaging with the Agency on multiple
occasions," (May 14, 2018 Tr. at 30,testimony of caseworker K.H.), and despite at least 10
separate referrals and discussions with several different NYAP personnel about this issue,
F.N. did not complete a mental health assessment. Id. at 75-78. Further, while she initially
linked with the NYAP parenting program after an assessment it was observed that F.N. did
not make any progress in the classes in which she did participate, and also that she refused
to participate in any additional classes after August 13, 2018. Id. at 31-32. F.N. also refused
to allow the caseworker into her home on several occasions. The record showed that the
court had suspended F.N.'s visits with T.W. on December 7, 2018, and that visits were not
resumed at any point prior to trial. Id. at 32-33. The caseworker testified that some of the
visits between T.W. and F.N. were positive, that there were no safety issues at F.N.'s home
the last time she was permitted to visit it, and also that F.N. did not miss any visits. But the
caseworker also stated that the case had never reached a point where unsupervised visits
or overnight visits were seriously considered.
{¶ 9} On March 15, 2018, the guardian ad litem filed an updated report,
recommending that T.W. remain in the Cincinnati foster home, as "his behaviors just
improved dramatically," but recommended weekend visits in both Cincinnati and
Columbus. (July 16, 2019, Tr. at 15; See also FCCS Ex. 10). The guardian filed another
update for the June 12, 2018 annual review, and reported that T.W. was "thriving" in his
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foster home and was "doing well in school to the point where his foster mom wanted to
enroll him in a different school because he's actually academically gifted." (July 16, 2019,
Tr. at 17-18; See also FCCS Ex. 11). By the time of the report, the guardian filed for a case
review on December 6, 2018, she was recommending that visits and phone calls be
suspended as a result of F.N.'s behavior, "until she complies with the Court order for the
psychological." (July 16, 2019, Tr. at 21-22; See also FCCS Ex. 12.) The guardian ad litem's
final report, dated May 9, 2019, recommended that the agency's permanent custody motion
be granted. (July 16, 2019, Tr. at 23-24; See also FCCS Ex. 13). And at the close of the
agency's case, T.W.'s attorney indicated that T.W. himself did not want to return to the
custody of F.N.
{¶ 10} F.N. admitted on cross-examination that she did not pass the parenting
assessment at the completion of her classes; she stated "I'm a mother, I don't have to pass
anything to be a mother to my child." Id. at 94-95. And when she was asked why she would
not complete a mental health assessment, F.N. answered as follows:
No, I'm not gonna (sic) do it * * * . Because it doesn't help me,
it does not help my child * * * . I'm okay, I have never killed
anybody where I was born, and I have never killed anybody
here in the United States. I've never hurt anybody and see the
blood coming from anybody or any animal. I don't intend to do
that ever. I never have that -- if -- I've -- I never think of it once.
Though one of these days in the courts, the -- the Guardian did
-- I don't know where she take it from, that I say to the
Guardian -- the -- the -- the -- the foster that I wanted to kill my
-- me and my child because we're gonna (sic) die together.
(Aug. 28, 2019, Tr. at 45.) The trial court addressed the issue with F.N. as follows:
[TRIAL JUDGE]: [F.N.], you say it is not in your best interest
or your child's best interest for you to do the mental health
assessment. Why do you feel it's not in your best interest when
that is the only thing standing between you and [T.W.] coming
home? * * * [I]t's a Court order and if you had followed the
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Court order your child probably would have been home with
you by now.
***
[F.N.]: Because I know that I'm okay.
[TRIAL JUDGE]: Yeah, but that's not the issue. The issue is you
have a Court order. I asked you to do it, you told me no. You
were asked to do it by the Magistrate, you were ordered --
you're actually ordered to do it. These are not a request. You
were ordered to do it. And you didn't do it. So we sit here today,
your child is out of your care for more than 22 months with a
possibility that he never be returned to you because you refuse
to do this one thing. So why would you not follow the Court
order? And as you sit here today you just testified you would
not do it today, knowing that it stands between you and your
child coming home. Okay, that's my only question. She's
refusing to answer. The record will reflect that she refused to
answer the question. You may step down.
Id. at 60-63.
{¶ 11} On October 8, 2019, the court issued a written decision and granted the
motion for permanent custody. The court concluded that T.W. had been in the custody of
FCCS for 12 of the preceding 22 consecutive months, and that a grant of permanent custody
was in T.W.'s best interest. F.N. appealed, and asserts a single assignment of error—that
"[t]he trial court committed reversible error by terminating the appellant-mother's parental
rights when the court failed to properly analyze the factors in R.C. 2151.414(D) and the
decision was against the manifest weight of the evidence."
{¶ 12} R.C. 2151.413 authorizes a public children services agency to file a motion
requesting permanent custody of a child for which it has temporary custody, and when the
child has been in the temporary custody of a public agency for 12 or more months out of a
consecutive 22-month period, the agency is required to file a permanent custody motion.
R.C. 2151.413(D)(1), cited in In re J.W., 10th Dist. No. 19AP-122, 2019-Ohio-4775, ¶ 23. And
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R.C. 2151.414(B)(1) permits a court to grant permanent custody of a child to a public agency
if, after a hearing, it determines by clear and convincing evidence, that "(1) any of the
circumstances in R.C. 2151.414(B)(1)(a) through (d) exist, and (2) such relief is in the best
interest of the child." In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 14. Thus, "[a]
decision to award permanent custody requires the trial court to take a two-step approach."
In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 18. "First, a trial court must
determine if any of the factors set forth in R.C. 2151.414(B)(1) apply," and second, the court
determines whether granting permanent custody to FCCS is in the best interest of the child.
Id. at ¶ 18-20.
The evidence in this case is undisputed that at the commencement of trial T.W. had been
in the custody of FCCS for more than 12 out of 22 consecutive months, and in fact had been
in FCCS custody for approximately 26 consecutive months. R.C. 2151.414(B)(1)(d).
Accordingly, the only issue for the trial court to decide was whether there was clear and
convincing evidence that an award of permanent custody was in T.W.'s best interest. R.C.
2151.414(D)(1)(a) through (e) set forth the relevant considerations that the court must
weigh in determining whether an award of permanent custody is in the best interests of a
child, all of which are of equal importance.
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly
affect the child;
(b) 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;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
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twelve or more months of a consecutive twenty-two-month
period * * *;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
Id., cited in In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. The trial court must
weigh the evidence presented under the aforementioned factors that evidence using a clear
and convincing standard. "Clear and convincing evidence" is "more than a mere
preponderance of the evidence but does not require proof beyond a reasonable doubt." Id.
at ¶ 14, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Rather, it means evidence that produces a firm belief or conviction as to the facts sought to
be established. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, citing Cross at
paragraph three of the syllabus. And while this court has consistently held that "[a] trial
court is not required to specifically enumerate each factor under R.C. 2151.414(D) in its
decision * * * [t]here must be some indication on the record that all of the necessary factors
were considered." (Citations omitted.) In re C.C., 10th Dist. No. 04AP-883, 2005-Ohio-
5163, ¶ 53.
{¶ 13} Unfortunately, in this case the trial court's judgment entry is insufficient and
does not permit this court to conclude that the trial court considered all of the R.C.
2151.414(D) factors. In its findings of fact and conclusions of law, the trial court made no
observations in its findings about the mother's interaction with the child, compare Oct. 8,
2019 Decision and Jgmt. Entry at 5 with R.C. 2151.414(D)(1)(a), did not state what the
child's wishes for placement were despite an in camera interview, compare Oct. 8, 2019
Decision and Jgmt. Entry at 6 with R.C. 2151.414(D)(1)(b), and did not issue a conclusion
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whether a legally secure placement could be achieved without granting permanent custody
to the agency. Compare Oct. 8, 2019 Decision and Jgmt. Entry at 5 with R.C.
2151.414(D)(1)(d). And though questions about cultural sensitivity and F.N.'s cultural
norms have been pervasive throughout this case, the court's entry failed to make any
reference to her country of origin beyond observing that she was "from West Africa."
(Oct. 8, 2019 Decision and Jgmt. Entry at 2). The entry also fails to mention the date of the
trial, T.W.'s age, or his date of birth. (Oct. 8, 2019 Decision and Jgmt. Entry.)
{¶ 14} Accordingly, based on this judgment entry, there is no way for us to be certain
that the trial court's judgment correctly analyzed the evidence in light of the statutory best
interest factors. For these reasons, the appellant's assignment of error is sustained and the
judgment of the trial court is reversed and remanded so that the trial court may make and
provide a more complete assessment.
Judgment reversed and remanded with instructions.
KLATT and NELSON, JJ., concur.