In re Z.W.

[Cite as In re Z.W., 2020-Ohio-3100.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: Z.W. : APPEAL NO. C-200061
TRIAL NO. F16-1548
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 27, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Erica Bowen, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,
Jeffrey J. Cutcher, for appellant Mother,
Megan E. Busam, Guardian ad Litem for Z.W..
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} In this permanent custody case, the juvenile court ordered the termination of
Mother’s parental rights based on a chronic history of substance abuse and mental health
problems, which contributed to the termination of rights over her other children.
Conducting our independent review, we find that clear and convincing evidence supports
the juvenile court’s decision, and we accordingly affirm.
I.
{¶2} In January 2019, Mother gave birth to Z.W., but the Hamilton County
Department of Job and Family Services (“HCJFS”) quickly became involved after both
Mother and Z.W. tested positive for oxycodone. Based in part on this positive test, and in
part over concerns regarding Mother’s history with substance abuse, mental health issues,
and involuntary termination of her rights as to her four other children, HCJFS opened a
case, requesting an ex parte emergency grant of custody of Z.W, which the court granted.
HCJFS later filed an amended custody complaint requesting permanent custody of Z.W.,
who was eventually adjudicated abused, neglected, and dependent.
{¶3} Prior to the hearing on permanent custody (a period of approximately eight
months), HCJFS worked with Mother towards reunification with Z.W. Though Mother’s
case plan was not formally adopted by the court at that time, Mother’s case worker, Kacie
Rolfes, testified to ongoing conversations with Mother regarding HCJFS’s expectations of
Mother in order to reunite her with Z.W. This included Mother’s participation in individual
therapy and med-somatic treatment to address mental health concerns, submitting to
random toxicology screens, and maintaining stable housing and employment. HCJFS also
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facilitated visits with Z.W., providing Mother with over 200 bus passes to alleviate
transportation concerns.
{¶4} But as time passed, Mother struggled to meet these goals. While she secured
a job and an apartment, she failed to take advantage of referrals from HCJFS for therapy
and med-somatic services. Shortly after Z.W. was removed from her care, Mother tested
positive for morphine and marijuana. She failed to participate in two subsequent toxicology
screens and a hair follicle test, but tested negative for drugs in the last screen she took. Ms.
Rolfes also noted that Mother missed or cancelled several visits with Z.W., which
contributed to HCJFS’s decision to discontinue facilitating visits with Z.W.
{¶5} In September 2019, a hearing on the permanent custody motion convened
before a magistrate, where the magistrate heard the testimony of both Mother and Ms.
Rolfes.1 For her part, Mother emphasized that she was maintaining stable housing and a job
with a local restaurant. As to her lack of participation in services, Mother cited schedule
conflicts with her job and lack of transportation, but insisted that she would participate in
any such services if ordered to do so (as her case plan was not yet formally adopted). The
magistrate, however, found Mother’s testimony unconvincing, deeming her explanation for
missing services and visits due to a 20-minute walk to the bus stop unreasonable and
doubting Mother’s sincerity to participate in services if ordered to do so, given her lack of
progress in the current case. Based on this evidence, the magistrate later issued a decision
finding permanent custody to HCJFS to be in Z.W.’s best interest. Mother timely filed
objections to the magistrate’s decision, and the juvenile court held a hearing on the
1Z.W.’s alleged father took no part in these proceedings and has been absent throughout the pendency of
this case.
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OHIO FIRST DISTRICT COURT OF APPEALS
objections in November 2019, but ultimately adopted the magistrate’s decision awarding
permanent custody to HCJFS, overruling Mother’s objections.
{¶6} Mother now appeals the juvenile court’s decision and raises a single
assignment of error challenging the award of permanent custody of Z.W. to HCJFS as
contrary to the manifest weight of the evidence.
II.
{¶7} Review of a juvenile court’s grant of permanent custody requires our
independent finding that the decision is supported by clear and convincing evidence. See In
re L.M.B. and M.A.B., 1st Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, ¶
8; In re C Children, 1st Dist. Hamilton Nos. C-190650 and C-190682, ¶ 8. Clear and
convincing evidence “ ‘produce[s] in the mind of the trier of facts 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,
895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. As to challenges to the weight of the evidence, we review
the entire record to determine whether, in resolving conflicts in the evidence, the trial court
lost its way, resulting in a manifest miscarriage of justice. See In re A.B., 1st Dist. Hamilton
Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 16.
A.
{¶8} In this case, HCJFS moved for a grant of permanent custody as part of an
original disposition. See R.C. 2151.27(C) and 2151.353(A)(4). Granting permanent custody
as an original disposition, however, requires that the juvenile court determine that (1) the
child cannot be placed with either parent within a reasonable time or should not be placed
with the parent utilizing the factors set forth in R.C. 2151.414(E), and (2) that the grant of
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OHIO FIRST DISTRICT COURT OF APPEALS
permanent custody is in the best interest of the child based upon the factors enumerated in
R.C. 2151.414(D)(1). See R.C. 2151.353(A)(4); In re R.B., 1st Dist. Hamilton Nos. C-190319
and C-190331, 2019-Ohio-3469, ¶ 10.
{¶9} Therefore, we begin our analysis by examining the juvenile court’s findings
supporting its determination that Z.W. could not be returned to Mother’s care within a
reasonable time or should not be returned to Mother. In making this determination, R.C.
2151.414(E) explains “the court shall consider all relevant evidence,” enumerating various
factors that the court can consider, and upon determining “one or more * * * exist as to each
of the child’s parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either parent[.]” R.C.
2151.414(E).
{¶10} The juvenile court here found several factors satisfied. To begin, the court
pointed to R.C. 2151.414(E)(1) because Mother “failed continuously and repeatedly to
remedy the problems that initially caused [Z.W.] to be placed outside the * * * home” and
R.C. 2151.414(E)(2) because Mother had “[c]hronic mental illness * * * or chemical
dependency * * * that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time[.]” The juvenile court also found R.C.
2151.414(E)(11) satisfied, as Mother failed to present clear and convincing evidence that
“notwithstanding the prior termination [of parental rights], the parent can provide a legally
secure permanent placement and adequate care for the health, welfare, and safety of the
child.”
{¶11} Clear and convincing evidence supports these conclusions. After completing a
diagnostic assessment, Mother was diagnosed with “unspecified bipolar and related
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OHIO FIRST DISTRICT COURT OF APPEALS
disorder” and both mild “cannabis use disorder” and “alcohol use disorder” (in remission).
As part of treatment, individual therapy and pharmacological management, i.e., med-
somatic services, were recommended. Ms. Rolfes testified to coordinating at least two
referrals for individual therapy and another referral for med-somatic services, but Mother
never followed up on these. Mother insisted that she had current prescribed medication for
her “bipolar seizures” and depression, but admitted she never provided any corroboration of
this to HCJFS.
{¶12} State’s exhibit 1, Mother’s diagnostic assessment, chronicles Mother’s ongoing
struggle with substance abuse and mental health since childhood. It also reflects Mother’s
assertion that she has been “clean” for over ten years, despite testing positive for drugs twice
during 2019. In addition to the positive toxicology screen in February, Mother failed to take
two other screens and refused a hair follicle test. Mother does not dispute these things, but
rather emphasizes her last screen, which was negative, as proof of her sobriety. Mother also
justified her missed appointments and visits due to the 20-minute walk to the bus stop and
conflicts with her work schedule. Ms. Rolfes testified that despite requests for Mother’s
work schedule to accommodate appointments, Mother supplied her with only one schedule.
The magistrate refused to find these acceptable reasons for not participating in services and
visits.
{¶13} Despite uncontroverted evidence of Mother’s failure to participate in services,
she points to her stable housing and work as evidence that she should be allowed more time
to complete her case plan. She specifically criticizes the juvenile court’s weighing of the
evidence in this regard. But the magistrate’s decision (later adopted by the juvenile court)
acknowledged Mother’s housing and a job—and while this is certainly a beneficial point for
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Mother, it failed to overcome her drug use and mental health challenges, and her refusal to
engage in treatment for those problems. Based on the evidence, the magistrate and later
juvenile court concluded that Mother’s lack of progress regarding her mental health and
substance abuse satisfied the requirements under R.C. 2151.414(E)(1) and (E)(2). See In re
P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 24-25 (R.C.
2151.414(E)(1) and (E)(2) findings supported by clear and convincing evidence and not
against the weight of the evidence where Mother failed to take medicine or participate in
therapy, skipped drug screens, and failed to substantially remedy problems that led to the
children’s removal); In re R.B., 1st Dist. Hamilton Nos. C-190319 and C-190331, 2019-Ohio-
3469, at ¶ 15-16, 20 (evidence taken as a whole supported (E)(1) and (E)(2) findings where
Mother refused to engaged in mental health and substance abuse services).
{¶14} Finally, Mother concedes that due to the involuntary termination of her rights
as to her four other children, she bore the burden to provide clear and convincing evidence
that she is now able to provide a legally-secure home and adequate care for Z.W. See In re
R.D., 5th Dist. Stark No. 2019CA00146, 2020-Ohio-1456, ¶ 42 (“The burden is shifted to
Mother to prove by clear and convincing evidence that, notwithstanding the prior
termination, she can provide a legally-secure permanent placement and adequate care for
[her child’s] health, welfare, and safety.”). But when questioned by the magistrate as to why
things differed this time around, Mother offered little by way of proof, retreating again to
her housing and employment, concluding “I’m just a better person than I was.” Ultimately,
the juvenile court determined that Mother failed to carry her burden, particularly given her
failure to make significant progress with her services. See In re M.B. 10th Dist. Franklin No.
04AP755, 2005-Ohio-986, ¶ 22 (“Appellant failed to successfully complete significant
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OHIO FIRST DISTRICT COURT OF APPEALS
elements of his case plan, despite opportunities to do so. Such failure is grounds for
terminating appellant’s parental rights.”).
{¶15} Mother challenges the magistrate and juvenile court as misconstruing her
testimony in finding that she was only willing to participate in services if ordered to do so.
The evidence reflected that Mother had not completed services, and while she testified that
she would comply with any case plan the court ordered, that assurance could be discounted
in light of her history of noncompliance with case plan services, which contributed to
involuntary termination of her parental rights in the past. While Mother may not have
explicitly stated that she would only comply if ordered to do so, the practical effect of her
actions throughout the pendency of the case, coupled with her testimony, supports the
juvenile court’s conclusion of her unwillingness to voluntarily comply with services. See In
re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, at ¶ 16 (weight of
the evidence challenges requires weighing the evidence and all reasonable inferences);
Matter of B.L., 2018-Ohio-547, 105 N.E.3d 379, ¶ 34 (12th Dist.) (“The presumption in
weighing the evidence is in favor of the finder of fact, which we are especially mindful of in
custody cases.”).
{¶16} In sum, the juvenile court’s finding that Z.W. could not or should not be
placed with Mother was supported by clear and convincing evidence, and therefore not
contrary to the manifest weight of the evidence.
B.
{¶17} As we turn to the best interest findings, R.C. 2151.414(D)(1) requires that a
court consider all relevant factors, including those delineated in R.C. 2151.414(D)(1)(a)
through (e). Under this analysis, “no single factor holds greater weight or heightened
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significance, as the court must weigh them all in its analysis.” In re L.M.B. and M.A.B., 1st
Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, at ¶ 13; In re P., 1st Dist.
Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 35 (same).
{¶18} Turning to the juvenile court’s analysis of these factors, R.C. 2151.414(D)(1)(a)
evaluates the relationship of the child with his or her parents and siblings, and other
relevant family and caregivers who “may significantly affect the child[.]” See R.C.
2151.414(D)(1)(a). Ms. Rolfes acknowledged Mother’s appropriateness and bonding with
Z.W. during visits, but her inconsistent visitation pointed in the other direction. At the
time of the hearing, Z.W. had lived in the same foster placement since birth and was well
bonded to his foster parents. His foster parents wished to adopt him and had already
adopted Z.W.’s sibling, who lived in the home and shared a bond with Z.W. Evidence
reflected that Z.W. was well-adjusted and meeting of all his developmental milestones. The
juvenile court duly observed that Mother’s visits went well with Z.W., but ultimately
concluded that “[Z.W.’s] interaction with his foster family is more significant than his
interaction with his [Mother].”
{¶19} As Z.W. was approximately eight months old at the time of the hearing and
could not express his wishes, the juvenile court acknowledged that Z.W.’s guardian ad litem
(“GAL”) recommended that a grant of permanent custody to HCJFS as in Z.W.’s best
interest. See R.C. 2151.414(D)(1)(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[.]”). The GAL reiterated concerns about Mother’s failure to engage in any services
despite HCJFS’s efforts and Z.W.’s successful development with his foster family.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} As to Z.W.’s custodial history, the evidence established that Z.W. resided in
the care of HCJFS for his entire life. See R.C. 2151.414(D)(1)(c) (requiring the trial court to
consider the custodial history of the child in making its best-interest determination).
Moreover, during that time Z.W. lived with only one family (which included his sibling) and
who planned to adopt him.
{¶21} Under R.C. 2151.414(D)(1)(d) the court examines “[t]he 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 [HCJFS][.]” Here, the juvenile court underscored
Mother’s overall lack of progress and compliance with services. The juvenile court could not
credit Mother’s claim that she would complete case plan services even if granted temporary
custody. When questioned about her compliance regarding a previously-ordered case plan
regarding another of her children, Mother admitted that she did not comply with that plan
notwithstanding the court’s order. Ultimately, while Mother obtained stable housing and
employment, this was only part of the equation for providing a safe and secure home for her
child. See Matter of B.C., 12th Dist. Warren Nos. CA2018-03-024 and CA2018-03-027,
2018-Ohio-2673, ¶ 33 (noting that children deserve a “stable, permanent, and healthy,
home environment” free from drug use and neglect).
{¶22} Finally, R.C. 2151.414(D)(1)(e) requires the court to consider whether any
factor listed in R.C. 2151.414(7) through (11) applies. As already noted, as Mother had her
parental rights terminated to her four other children, the magistrate and juvenile court
examined (E)(11) and found it satisfied.
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OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶23} Based on the foregoing, clear and convincing evidence supported the juvenile
court’s finding that a grant of permanent custody to HCJFS was in Z.W.’s best interest.
Therefore, we also find that the decision was not against the manifest weight of the
evidence. We accordingly overrule Mother’s sole assignment of error and affirm the
judgment of the juvenile court.
Judgment affirmed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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