In re L.W.

[Cite as In re L.W., 2022-Ohio-1482.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. Earle E. Wise, Jr., P. J.
IN THE MATTER OF: Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
L.W. Case No. 2022 CA 00008
Minor Child OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case No. 2020 JCV
00376
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 3, 2022
APPEARANCES:
For Appellee For Appellant Father
BRANDON J. WALTENBAUGH BERNARD L. HUNT
STARK COUNTY JFS 2395 McGinty Road, NW
402 2nd Street, SE North Canton, Ohio 44720
Canton, Ohio 44702
Stark County, Case No. 2022 CA 00008 2
Wise, John, J.
{¶1} Appellant-Father W.W. appeals the December 17, 2021, Judgment Entry
entered by the Stark County Court of Common Pleas, Juvenile Division, which terminated
his parental rights, privileges, and responsibilities with respect to his minor child, L.W.,
and granted permanent custody of the child to Appellee Stark County Department of Job
and Family Services (“SCJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant W.W. is the Father of the minor child L.W. born October 30, 2020.
(T. at 10).
{¶3} On April 22, 2021, Stark County Job and Family Services ("SCJFS") filed a
Complaint alleging the dependency, neglect, and/or abuse of L.W. (DOB 10/30/20). (T.
at 10). The allegations of the Complaint detailed concerns regarding Appellant's history
with SCJFS regarding a different child, his criminal history, substance use, untreated
mental health, and history of not complying with case plan services. (T. at 8-9).
{¶4} On April 23, 2021, the trial court held an emergency shelter care hearing
and found that probable cause existed for the involvement of SCJFS and that SCJFS had
engaged in reasonable efforts to prevent the need for the removal of the child. The court
found continued residence of the child with Appellant was contrary to his best interest of
the child and approved and adopted the pre-adjudicatory orders requested by SCJFS,
and granted temporary custody of the child to SCJFS. (T. at 10).
{¶5} On July 7, 2021, the trial court found the child to be abused and placed him
into the temporary custody of SCJFS. (T. at 10). The trial court also approved and adopted
the initial case plan, found that SCJFS had made reasonable efforts to finalize the
Stark County, Case No. 2022 CA 00008 3
permanency planning in effect, and found compelling reasons existed to preclude a filing
of permanent custody. (T. at 10).
{¶6} On September 23, 2021, SCJFS filed a motion seeking permanent custody
of the child. (T. at 10-11).
{¶7} On October 14, 2021, the trial court reviewed the case. The trial court
approved and adopted the case plan, found that SCJFS had made reasonable efforts to
finalize the permanency planning in effect, and ordered status quo. The trial court also
found that no compelling reasons existed to preclude a filing of permanent custody. (T. at
11).
{¶8} On November 4, 2021, Attorney Kristen Guardado, the Guardian ad Litem
for the child filed a report recommending that permanent custody be granted to the
Agency.
{¶9} On December 16, 2021, the trial court conducted a hearing on the motion
for permanent custody of the child. (Tr. at 3-23).
{¶10} Mother of the child stipulated to the motion. (T. 4-7).
{¶11} Appellant-Father did not attend the hearing. (T. at 2). Appellant-Father’s
counsel requested a continuance and stated that he had not had contact with Appellant-
Father for "4 or 5 months". (T. at 7). The trial court denied that motion and proceeded with
evidence. (T. at 7).
{¶12} SCJFS presented the following evidence regarding Appellant-Father and
the child:
{¶13} Caseworker Kimberly Gabel testified for SCJFS. (T. at 8-16). Caseworker
Gabel testified that she had been the assigned caseworker since December of 2020. (T.
Stark County, Case No. 2022 CA 00008 4
at 9). Ms. Gabel testified that SCJFS had concerns regarding its history with Appellant-
Father regarding a different child, criminal history, substance use, untreated mental
health, and history of not complying with case plan services. (T. at 8-9). Ms. Gabel
testified that Appellant-Father had an active warrant for a drug-related offense. (T. at 9).
Ms. Gabel testified that SCJFS attempted to work with Appellant outside of the legal
system, but it was unsuccessful. Id. Ms. Gabel testified that Appellant had not visited the
minor child since May 27, 2021. (T. at 13). Ms. Gabel testified that Appellant's case plan
included completing domestic violence treatment, Goodwill parenting classes, a
substance abuse assessment, and compliance with drug screens. (T. at 11). Ms. Gabel
testified that Appellant failed to begin domestic violence treatment, failed to comply with
substance abuse treatment, and failed to comply with drug screens. (T. at 12). She
testified that Appellant also failed to complete Goodwill parenting classes. (T. at 13). Ms.
Gabel testified that Appellant was homeless and had only sporadic contact with her
throughout the case. Id. SCJFS rested for its first portion of the permanent custody trial,
and the trial court proceeded to the second phase of the trial. (T. at 16).
{¶14} SCJFS presented the following testimony regarding the best interests of the
child:
{¶15} Caseworker Gabel testified that the child had multiple health issues due to
being born prematurely and in utero exposure to drugs. (T. at 17). Ms. Gabel testified that
the child has DiGeorge Syndrome, developmental delays, and multiple other issues. Id.Ms. Gabel testified that the child was placed with a third-party placement and that the
family was adequately caring for L.W., that he was thriving there, and that the family
wanted to adopt the child. (T. at 18-19). Ms. Gabel testified that the placement family had
Stark County, Case No. 2022 CA 00008 5
already adopted L.W.’s siblings. (T. at 18). Ms. Gabel testified that there was no bond
between the child and Appellant-Father due to Appellant-Father having failed to visit the
child since May 21, 2021. (T. at 20). Ms. Gabel further testified that the child would benefit
from adoption, and that permanent custody was in his best interest. Id.{¶16} Attorney Guardado, the Guardian ad litem, reiterated her recommendation
that permanent custody was in the best interest of L.W., and that the child's placement
was the "best possible placement". (T. at 21-22).
{¶17} At the conclusion of testimony and evidence, the trial court granted the
motion for permanent custody from the bench. (T. at 23).
{¶18} By Judgment Entry filed December 17, 2021, the trial court issued its
findings of fact, granting permanent custody of the child to SCJFS and terminating the
parental rights of Appellant-Father and mother. Specifically, the trial court found that,
despite reasonable efforts by SCJFS, the child could not and should not be placed with
Appellant-Father within a reasonable amount of time, that Appellant-Father had
abandoned the child, and that the grant of permanent custody was in the child's best
interests.
{¶19} It is from this judgment entry Father appeals, assigning the following errors:
ASSIGNMENTS OF ERROR
{¶20} "I. THE JUDGMENT OF THE COURT THAT L.W. (DOB 10-30-20) COULD
NOT BE PLACED WITH THE FATHER WITHIN A REASONABLE PERIOD OF TIME
WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
Stark County, Case No. 2022 CA 00008 6
{¶21} “II. THE TRIAL COURT'S JUDGMENT FINDING THAT L.W.'S BEST
INTEREST WOULD BE SERVED BY GRANTING PERMANENT CUSTODY WAS
AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶22} This case comes to us on the expedited calendar and shall be considered
in compliance with App.R. 11.2(C).
I., II.
{¶23} We elect to address Father's first and second assignments of error together.
In his first assignment of error, Father maintains the trial court's finding L.W. could not be
placed with him within a reasonable time was against the manifest weight and sufficiency
of the evidence. In his second assignment of error, Father contends the trial court's finding
an award of permanent custody was in the best interest of L.W. was against the manifest
weight and sufficiency of the evidence
{¶24} 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, Stark App. No. CA5758 (Feb. 10, 1982). 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., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶25} 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
Stark County, Case No. 2022 CA 00008 7
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.
{¶26} 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 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.
{¶27} 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.
Stark County, Case No. 2022 CA 00008 8
{¶28} 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.
{¶29} If the child is not abandoned or orphaned, 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.
{¶30} As set forth in our Statement of the Facts and Case, supra, we find there
was competent, credible evidence Father failed to remedy the problems which caused
the removal of L.W. from the home. The trial court found by clear and convincing evidence
that Appellant-Father had abandoned the child by failing to visit him for a period greater
than 90 days, and that Appellant- Father had failed to remedy the conditions which caused
the child to be placed in the care and custody of SCJFS.
{¶31} With respect to the best interest finding, the evidence revealed L.W. has no
bond with Father and only a minimal bond with Mother. L.W. is doing well in his foster
placement and is bonded with the foster parents. The foster parents have already adopted
three of his maternal cousins and wish to adopt him also. The foster parents have been
strong advocates for L.W. with regard to his medical needs and have been able to secure
Stark County, Case No. 2022 CA 00008 9
him care with a team out of Nationwide Hospital in Columbus which deals specifically with
DiGeorge Syndrome. L.W. needs stability, routine and permanency in his life.
Additionally, the guardian ad litem filed a report wherein she opined the best interest of
L.W. would be served by granting permanent custody to SCJFS. The GAL stated that
L.W. “hit the lottery” with these foster parents.
{¶32} Based upon the foregoing, we find the trial court's findings that L.W. could
not be placed with Appellant-Father within a reasonable time and that an award of
permanent custody was in the child's best interest were not against the manifest weight
of the evidence and were based upon sufficient evidence.
{¶33} Appellant-Father’s two assignments of error are overruled.
{¶34} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Stark County, Ohio, is affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Gwin, J., concur.
JWW/kw 0429