In re A.W.

[Cite as In re A.W., 2014-Ohio-3188.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN THE MATTER OF: :
CASE NO. CA2014-03-005
A.W. :
OPINION
: 7/21/2014
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 12AND0012
Susan Wollscheid, P.O. Box 841, Washington C.H., Ohio 43160, Guardian Ad Litem
Kristina M. Oesterle, P.O. Box 314, Washington C.H., Ohio 43160, for appellant
Jess C. Weade, Fayette County Prosecuting Attorney, James B. Roach, 110 East Court
Street, Washington C.H., Ohio 43160, for appellee
S. POWELL, P.J.
{¶ 1} Appellant, the biological mother of A.W., appeals a decision of the Fayette
County Court of Common Pleas, Juvenile Division, granting permanent custody of her
daughter to appellee, the Fayette County Department of Job and Family Services, Children
Services Division (FCDJFS). For the reasons outlined below, we affirm.
{¶ 2} On January 5, 2012, FCDJFS filed a complaint alleging A.W., appellant's then
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one-year-old daughter, was a neglected and dependent child. At the time the complaint was
filed, appellant, who suffers from depression and severe anxiety, was in jail facing charges of
domestic violence against her then live-in boyfriend, R.W., the father listed on A.W.'s birth
certificate. After holding a hearing on the matter, the juvenile court granted temporary
custody of A.W. to FCDJFS. Thereafter, on March 15, 2012, the juvenile court adjudicated
A.W. a neglected and dependent child and ordered her to remain in the temporary custody of
FCDJFS. A paternity test later revealed R.W. was not A.W.'s father. To date, the identity of
A.W.'s father remains unknown.
{¶ 3} After FCDJFS was granted temporary custody of A.W., the juvenile court
adopted a case plan that instructed appellant to complete a parenting course, receive
substance abuse and mental health treatment, submit to random drug testing, and show an
ability to meet the basic needs of herself and her daughter. By September 11, 2012, the
parties agreed that appellant had substantially completed the case plan. As a result, the
juvenile court returned legal custody of A.W. to appellant and granted protective supervision
of the child to FCDJFS.
{¶ 4} Approximately three weeks later, on October 4, 2012, FCDJFS filed a new
complaint again alleging A.W. was again a neglected and dependent child. The new
complaint was based on allegations that when FCDJFS made an unannounced visit to her
home on the morning of October 3, 2012, appellant failed to answer the door for
approximately 15 minutes. During this time, FCDJFS reported that A.W. attempted to open
the door and could be heard crying inside. Once appellant answered the door, appellant
appeared under the influence and exhibited dilated eyes, stuttering and slurred speech, and
contradicted herself. Appellant later admitted to mixing the drugs Xanax and Suboxone, a
medication prescribed to combat her prior heroin addiction, contrary to her doctor's orders. A
drug screen also confirmed appellant's use of Xanax in conjunction with Suboxone. As a
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result of these new allegations, the juvenile court once again granted temporary custody of
A.W. to FCDJFS.
{¶ 5} On June 18, 2013, after the parties agreed that appellant had once more shown
herself capable of caring for her daughter, the juvenile court returned legal custody of A.W. to
appellant and granted FCDJFS protective supervision of the child. As part of the juvenile
court's judgment entry, the juvenile court stated the following:
There is a protection order in place whereby [R.W.] is not
allowed to be around [appellant]. [R.W.] was recently charged
with OVI and was found to have a firearm in his car. That
incident occurred later in the day following his being at
[appellant's] home.
The juvenile court also stated as part of its judgment entry:
The [FCDJFS] has no concerns about custody being returned to
[appellant], but requests they be awarded protective supervision.
They have concerns about the relationships that [appellant] may
be keeping.
{¶ 6} Approximately three and one-half months later, on October 2, 2013, the
Washington Courthouse Police Department received an anonymous phone call from an
individual expressing their concerns about A.W. and appellant being at R.W.'s home.
Deciding to conduct a welfare check at R.W.'s residence, police repeatedly knocked on the
door for approximately five minutes before R.W. answered. Once R.W. answered the door,
A.W. could be seen sitting inside. When asked about appellant's whereabouts, R.W.
reported that appellant had gone to the grocery store. Appellant returned shortly thereafter,
1
also claiming to have been at the grocery store. Appellant, however, appeared unsteady on
her feet, had dilated pupils, and exhibited slurred speech.
{¶ 7} Believing appellant was under the influence of drugs or alcohol, the officers
1. Appellant later claimed that she was actually sitting in the back seat of a car parked behind R.W.'s house
waiting to go to Taco Bell when the police arrived.
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then administered a field sobriety test to appellant, which she failed. Appellant also refused
to submit to a breathalyzer test or provide a urine sample. Due to her apparent intoxication,
A.W. was then removed from R.W.'s home and again placed in the temporary custody of
FCDJFS. After the child was removed from her care, appellant agreed to appear at FCDJFS
offices the following morning. Appellant, however, did not appear. Instead, after failing to
appear at the scheduled time, appellant called FCDJFS claiming she was traveling to
Gatlinburg, Tennessee with her mother and would not return for a week. Although leaving
several voicemails with the agency, appellant did not return to FCDJFS until approximately
two weeks later.
{¶ 8} After again receiving temporary custody of the child, on December 16, 2013,
FCDJFS filed for permanent custody of A.W. A hearing on the matter was then scheduled
for February 18, 2014. Following this hearing, the juvenile court issued its decision finding by
clear and convincing evidence that it was in the child's best interest to grant permanent
custody to FCDJFS. Appellant now appeals from the juvenile court's decision granting
permanent custody of her daughter to FCDJFS, raising one assignment of error for review.
{¶ 9} THE TRIAL COURT'S DECISION TO GRANT THE FAYETTE COUNTY
DEPARTMENT OF JOB AND FAMILY SERVICES PERMANENT CUSTODY OF A.W. IS
NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE THAT GRANTING
PERMANENT CUSTODY WOULD BE IN THE BEST INTEREST OF A.W.
{¶ 10} In her single assignment of error, appellant raise several issues arguing the
juvenile court's decision granting permanent custody to FCDJFS was not in the child's best
interest as that finding was not supported by sufficient credible evidence. Although not
explicit, we construe appellant's single assignment of error as a manifest weight of the
evidence challenge. In reviewing a trial court's decision in this context, "this court must
determine whether the trier of fact, in resolving evidentiary conflicts and making credibility
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determinations, clearly lost its way and created a manifest miscarriage of justice." In re Mn
S.(F), 12th Dist. Madison No. CA2013-02-004, 2013-Ohio-3086, ¶ 10, citing In re M.Z., 9th
Dist. Lorain No. 11 CA010104, 2012-Ohio-3194, ¶ 22.
{¶ 11} Before a natural parent's constitutionally protected liberty interest in the care
and custody of her child may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met.
Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review
of a juvenile court's decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court's determination. In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding
by the juvenile court that the evidence was clear and convincing only if there is a sufficient
conflict in the evidence presented. In re Rodgers, 138 Ohio App.3d 510, 520 (12th
Dist.2000). Therefore, as an appellate court reviewing a decision granting permanent
custody, we neither weigh the evidence, nor assess the credibility of the witnesses, but
instead, determine whether there is sufficient clear and convincing evidence to support the
juvenile court's decision. In re S.D., 12th Dist. Butler No. CA2013-08-138, 2014-Ohio-156, ¶
28.
{¶ 12} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and
award permanent custody to a children services agency if it makes findings pursuant to a
two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. Initially,
the court must find that the grant of permanent custody to the agency is in the best interest of
the child, utilizing, in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton
No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Next, the court must find that any of the
following apply: the child is abandoned; the child is orphaned; the child has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; or
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where the preceding three factors do not apply, the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent. R.C. 2151.414(B)(1)(a),
(b), (c) and (d); In re E.B., 12th Dist. Warren Nos. CA2009-10-139, CA2009-11-146, 2010-
Ohio-1122, ¶ 22. Only one of those findings must be met for the second prong of the
permanent custody test to be satisfied. In re T.D., 12th Dist. Preble No. CA2009-01-002,
2009-Ohio-4680, ¶ 15.
{¶ 13} In this case, the juvenile court found by clear and convincing evidence that
A.W. has been in the temporary custody of FCDJFS for more than 12 months of a
consecutive 22-month period. Appellant does not dispute this finding. Rather, appellant
raises several issues regarding the juvenile court's finding that granting permanent custody of
A.W. to FCDJFS was in the child's best interest.
{¶ 14} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a
permanent custody hearing:
[T]he court shall consider all relevant factors, including, but not
limited to the following:
(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
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
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section apply in relation to the parents and child.
{¶ 15} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found A.W. interacts
well with appellant during her weekly visits, but that "[t]the child does exhibit separation
anxiety with when with her mother and wants to know when she will be back with the foster
family." In addition, the juvenile court found that although A.W. does have a bond with her
mother, she has a "stronger bond" with her foster family. The juvenile court also found that
A.W.'s foster family "does many activities with the child and the child gets along very well with
the family."
{¶ 16} In consideration of R.C. 2151.414(D)(1)(b), the juvenile court found A.W.'s
young age prohibited it from conducting an in camera interview regarding the child's wishes,
nor were her wishes contained in the guardian ad litem's report. The guardian ad litem,
however, did recommend permanent custody be granted to FCDJFS. In reaching this
conclusion, the guardian ad litem noted appellant's "instability has had a significant impact
upon A.W," as well as appellant's failure to receive "continued appropriate treatment for her
own physical health as well as her mental health." The report also indicated A.W. repeatedly
referred to her foster family's residence as "home," and that the child showed a "great deal of
excitement to go there and see daddy and sissy," her foster father and foster sister.
{¶ 17} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found A.W. had been
in the temporary custody of FCDJFS from January 5, 2012 until September 11, 2012, again
from October 4, 2012 until June 20, 2013, and finally from October 31, 2013 to the present.
As noted above, it is undisputed that this constitutes clear and convincing evidence that A.W.
has been in the temporary custody of FCDJFS for more than 12 months of a consecutive 22-
month period. Moreover, each time she was removed from appellant's care, A.W. was
placed in the care of the same foster home.
{¶ 18} Finally, in consideration of R.C. 2151.414(D)(1)(d), the juvenile court found the
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evidence made it clear that the child was in need of a legally secure placement. In so
holding, the juvenile court noted appellant's almost immediate regression after twice
completing the required case plan, as well as her apparent inability to maintain financial
stability. The juvenile court also noted that no biological father has ever been determined for
A.W., and that no suitable relative has indicated a desire to take custody of the child. Based
on these findings, the juvenile court determined that it was in A.W.'s best interest to grant
permanent custody to FCDJFS.
{¶ 19} After carefully reviewing the record in this case, we find no error in the trial
court's decision finding it was in A.W.'s best interest to grant permanent custody to FCDJFS.
Appellant, however, raises several issues arguing the juvenile court's decision was not in the
child's best interest. For instance, appellant initially argues the juvenile court improperly
found A.W. exhibited separation anxiety because that finding was not supported by any
medical testimony. However, even without medical testimony, the record firmly establishes
that A.W. exhibited signs of stress upon being removed from both her mother and her foster
family. In fact, as A.W.'s foster mother testified in regards to A.W.'s alleged separation
anxiety:
[GUARDIAN AD LITEM]: In the last return to you did [A.W.]
show any stress from these removals and returns?
[FOSTER MOTHER]: Yeah, she's starting to be afraid of the
dark, that was new, she wasn't afraid of the dark before. Her
separation anxiety when you would leave her room, and she had
to know where I was at all times to the point to where if I went to
go take a bath, she had to be in there sitting in the floor playing
with something to know where I was.
[GUARDIAN AD LITEM]: Does she still suffer from any of those
anxieties?
[FOSTER MOTHER]: Somewhat yeah. She doesn't she just
has to know where I'm going, where I don't leave her much just
because of that, but like at daycare she's becoming comfortable
with that again the whole routine of being in daycare and
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knowing that I'll be back to get her. But she still suffers
somewhat from that.
Appellant also testified regarding A.W.'s alleged separation anxiety:
[APPELLANT'S TRIAL COUNSEL]: And we've heard testimony
from the foster mom that there was concerns that your daughter
exhibiting, had separation anxiety needing to know [w]here the
foster mom is at all times, is it also a behavior that occurred
where she was with you?
[APPELLANT]: Yes ma'am.
[APPELLANT'S TRIAL COUNSEL]: During the times that she
was placed back with you or prior to even being removed?
[APPELLANT]: After she was removed the first time she always
had to know where I was going. If I went to the restroom she
was there, bath, right there.
{¶ 20} The fact that the child showed signs of stress when removed from both her
mother and foster family, regardless of whether those signs could be medically diagnosed as
separation anxiety, is certainly a relevant consideration the court may take into account when
determining whether permanent custody is appropriate. To hold otherwise would place an
unnecessary evidentiary burden on children service agencies when dealing with the already
difficult nature of permanent custody proceedings. Therefore, as the juvenile court's finding
was supported by sufficient credible evidence, appellant's first argument is overruled.
{¶ 21} Next, appellant argues the juvenile court's decision was improper because it
ignored the bond between A.W. and appellant. However, contrary to appellant's claim
otherwise, the juvenile court specifically noted A.W. had a bond with her mother, but that the
child actually had a "stronger bond" with her foster family. Although not explicit, this finding
was supported by the record and witness testimony that indicated A.W. consistently referred
to her foster family's residence as "home," and that she called her foster parents "mommy"
and "daddy" and her foster sister "sissy." Specifically, as A.W.'s foster mother testified:
[FOSTER MOTHER]: She's a little spoiled. Great, she actually
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just started calling my daughter sissy. And she's just like a big
sister to her. And then my husband once again, a little spoiled,
but he, he loves her and she loves him. It's taken awhile for her
to develop that relationship with him in the beginning she was
really afraid of men in general. I'm not sure why but it's taken
awhile but they're fine now.
[FCDJFS]: How, how long would you say that things have been
fine? Is that just since the last time she's been in your home or
[?]
[FOSTER MOTHER]: No the sec[ond], well when she first came
it was hard but after a few months she grew to get used to him
now that she's around him more she's, the past year or so
they've really bonded.
[FCDJFS]: What kind of things do they do together?
[FOSTER MOTHER]: Playing outside, walks, bicycle trips, he
has a carrier on the back of his bicycle that when she was
smaller she rode in. Going to the [park], watching TV shows
together just any of those…
[FCDJFS]: Is it your desire to continue to have [A.W.] in your
home?
[FOSTER MOTHER]: As long as she needs, yep.
There was also testimony elicited from A.W.'s foster mother that she and her husband were
interested in adopting A.W. if permanent custody was granted to FCDJFS. Although A.W.
had made a bond with appellant, because the juvenile court's finding the child actually had a
"stronger bond" with her foster family was supported by sufficient credible evidence,
appellant's second argument is overruled.
{¶ 22} Appellant also argues the juvenile court's decision was improper because she
was able to complete the case plan and regain custody of A.W. on two separate occasions.
While this may be true, the record demonstrates that on both occasions appellant was later
found under the influence of drugs or alcohol and in a state where she was unable to
properly care for her daughter. In addition, the record indicates appellant had left her
daughter in the care of R.W., who she had a protection order against, and who was recently
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charged with OVI wherein a firearm was located in his car. Appellant even acknowledged
that A.W. was not to be around R.W. during this time. The record also indicates that when
A.W. was last removed from appellant's care, instead of appearing at FCDJFS offices as
promised, appellant left the state with her mother and did not return until approximately two
weeks later.
{¶ 23} As this court has stated previously, "a parent is afforded a reasonable, not an
indefinite, period of time to remedy the conditions causing the children's removal." In re
A.M.L., 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32, quoting In re L.M., 11th
Dist. Ashtabula No. 2010-A-0058, 2011-Ohio-1585, ¶ 50. Although appellant may be able to
work within the confines of her case plan, the record clearly indicates that she is incapable of
taking care of her child on a consistent basis. In other words, while it appears that appellant
had once again taken steps towards recovery and compliance, given her almost immediate
regression whenever she was reunited with her daughter, we find such progress is simply too
little, too late. Appellant's third argument is therefore overruled.
{¶ 24} Next, appellant argues the juvenile court's decision was improper because
there was no credible evidence she was under the influence of drugs or alcohol, thus twice
prompting FCDJFS to remove A.W. from her care. However, the record contains ample
evidence indicating appellant was under the influence of some foreign substance on both
occasions. Here, the record indicates when FCDJFS made an unannounced visit to her
home on October 3, 2012, appellant did not answer the door for approximately 15 minutes,
during which time FCDJFS reported that A.W. attempted to open the door and could be
heard crying inside. Once appellant answered the door, the record indicates she exhibited
dilated eyes, was stuttering and slurring her words, and contradicted herself. Appellant later
admitted to mixing the drugs Xanax and Suboxone, a medication prescribed to combat her
prior heroin addition, contrary to her doctor's orders. In addition, after police arrived at R.W.'s
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home to conduct a wellness check on October 2, 2013, appellant failed a field sobriety test
after she appeared unsteady on her feet and exhibited slurred speech. This evidence was
certainly sufficient credible evidence to establish her intoxicated state. Appellant's fourth
argument is overruled.
{¶ 25} Finally, Appellant argues the juvenile court's decision was improper because
there was no credible evidence that she was unable to maintain financial stability. Yet, due
to her apparent medical conditions, the record indicates appellant has only been able to
secure seasonal employment through her mother's gardening shop. As appellant readily
admits, she does not receive a paystub from her mother, nor does she receive a set salary.
Rather, appellant only receives money from her mother "as needed." This includes money
for insurance and gas for her car, her electric bill, and her cell phone. The record also
contains evidence that appellant lives in housing subsidized by the Department of Housing
and Urban Development (HUD), that she receives $189 in food stamps per month, and has
accepted additional financial assistance from R.W. and from a friend named "Mark."
Although appellant refers to this merely as her "support system," we find this arrangement
falls well short of the financial stability necessary to raise a child. Appellant's fifth argument is
therefore overruled.
{¶ 26} As FCDJFS states as part of its appellate brief, A.W. is entitled to not only
periods of appropriate care, but an entire childhood where her needs are consistently being
met. Appellant has failed to demonstrate that she can provide her daughter with such care.
Moreover, while appellant asserts that greater weight should be given to appellant's bond
with her daughter, compliance with her case plan, and steps towards remedying the
situations that lead to A.W.'s removal from her care, we find the juvenile court properly
considered the appropriate factors under R.C. 2151.414(D)(1) and acted in the child's best
interest by granting permanent custody to FCDJFS. Therefore, having found no merit to any
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of the five arguments advanced by appellant herein, appellant's single assignment of error is
overruled.
{¶ 27} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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