In re W/H Children

[Cite as In re W/H Children, 2022-Ohio-1778.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: W/H CHILDREN : APPEAL NO. C-220113
TRIAL NO. F10-1318-X
:
: 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, 2022
Christopher P. Kapsal, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Gretta M. Herberth,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and
Family Services,
Julia Wood, for Guardian ad Litem for D.W.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Appellant mother appeals the judgment of the juvenile court
terminating her parental rights and awarding permanent custody of her child D.W. to
the Hamilton County Department of Job and Family Services (“HCJFS”). For the
reasons that follow, we affirm.
Background
{¶2} The record shows that HCJFS’s involvement with D.W. began shortly
after D.W.’s birth in August 2020. The birthing hospital staff became concerned with
mother’s erratic behavior and instances of mother failing to properly handle her
newborn. After mother and D.W. were discharged from the hospital, HCJFS filed a
motion for temporary interim custody of D.W., and a motion with the court requesting
a determination that HCJFS need not make reasonable efforts to eliminate the
continued removal of D.W. from the home, because mother had two children who had
been involuntarily committed to the custody of HCJFS in March 2013 and November
2019. Mother also had another child who was placed in the legal custody of paternal
grandmother in January 2013. The trial court granted both of HCJFS’s motions.
HCJFS then filed a complaint seeking permanent custody of D.W.
{¶3} At the adjudicatory hearing, two social workers testified on behalf of
HCJFS. HCJFS became involved with mother during her hospital stay with D.W.
because mother was acting agitated, yelling, cursing at staff, and uncooperative with
routine care for herself and her infant. Mother was observed handling the baby in a
rough manner. One of the social workers testified that mother had psychiatric
diagnoses of bipolar and depression and that mother had tested positive for marijuana
and opiates in May of 2020 while pregnant with D.W. The social worker had multiple
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OHIO FIRST DISTRICT COURT OF APPEALS
conversations with mother where mother’s behavior escalated, and at one point,
mother even threatened the social worker.
{¶4} The trial court adjudicated D.W. dependent and the matter proceeded
to the dispositional hearing. At the dispositional hearing, HCJFS presented testimony
from a facilitator at the Family Nurturing Center (“FNC”). The facilitator testified that
she had supervised the visits between mother and D.W. The facilitator acknowledged
that mother had interacted positively with D.W. and that mother and D.W. had formed
an attachment. However, the facilitator testified that mother’s behavior was obsessive
at times, and that mother was fixated on certain issues with respect to the foster family,
for instance mother obsessed over whether the foster family had taken D.W.
swimming, which mother alleged had caused D.W. to develop a rash. Mother also
believed that someone had been biting D.W.’s fingernails.
{¶5} The FNC facilitator also testified with regard to multiple instances of
erratic behavior by mother, such as cursing and yelling at staff. At one visit, the
facilitator had to call security because mother was screaming in the lobby and
pounding on the door, and the FNC staff had trouble calming mother down. After the
visit started, mother still continued to scream while holding the baby. Mother pushed
D.W.’s stroller to the corner of the room and refused to allow the facilitator to take
D.W. unless mother could speak with D.W.’s foster mother. At the next visit, FNC staff
had a meeting with mother to discuss her behavior and to develop a safety plan for
mother to continue to visit D.W. at FNC. Mother became irate and could not be calmed
down for 30 minutes.
{¶6} The HCJFS caseworker also testified at the dispositional hearing. The
caseworker testified that mother had engaged in therapy sessions, but that mother had
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OHIO FIRST DISTRICT COURT OF APPEALS
not made significant progress in addressing her mental-health needs. The caseworker
testified that mother had an apartment and a job, and she appeared to be doing better
overall, but in January 2021, the caseworker noticed a behavior change in mother
where she became agitated, and refused to answer questions. On one occasion during
the caseworker’s home visit, mother reported that she had not eaten in four days
because the electricity had been turned off in her apartment, however, she did not
want to go to a food pantry for fear of rats. The caseworker found this especially
problematic because mother had reported that she was pregnant again. Mother
reported that she had been taking Lithium to address her mental-health issues, but
mother never provided any documentation or doctors’ names to support her claims of
ongoing medical treatment.
{¶7} Mother also testified at the dispositional hearing. Mother testified that
she had been doing better in the past 14 months since getting her own apartment.
Prior to that, mother had been homeless on and off for several years. Mother testified
that she no longer went to therapy because she had been discharged from the 12-week
program. Mother admitted that she had stopped taking Lithium for a short time when
she found out she was pregnant, but that she had gotten a refill of the medication the
day prior to trial. Mother felt that the medication helped control her outbursts.
Mother requested that the court continue interim custody. HCJFS and D.W.’s GAL
both argued that mother could not provide a safe and secure permanent home for
D.W., despite mother’s progress in this case as compared to her other children’s cases.
{¶8} The magistrate determined that D.W. could not be placed with either
parent within a reasonable time, or should not be placed with either parent, and that
D.W.’s best interest would be served by granting HCJFS’s complaint for permanent
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OHIO FIRST DISTRICT COURT OF APPEALS
custody. The magistrate determined that mother’s history of untreated mental-health
issues had rendered her unable to provide a safe home for D.W. Mother filed
objections. The trial court referred the matter back to the magistrate for further
evidence as to HCJFS’s attempts to locate the putative father. The magistrate took
additional evidence with regard to the putative father and issued a supplemental
decision again granting permanent custody of D.W. to HCJFS. Mother filed an
objection, and the trial court adopted the magistrate’s decision and entered an order
granting permanent custody of D.W. to HCJFS.
{¶9} Mother appeals.
Permanent Custody
{¶10} In her sole assignment of error, mother argues that the trial court erred
in granting permanent custody of D.W. to HCJFS, because the trial court’s decision
was not supported by sufficient evidence and was against the manifest weight of the
evidence.
{¶11} This court laid out the standard for reviewing sufficiency and weight
challenges in parental-termination cases as follows:
A juvenile court’s determination on a motion for permanent custody
must be supported by clear and convincing evidence. Clear and
convincing evidence is evidence sufficient to produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be
established. In reviewing a juvenile court’s determination on a
permanent-custody motion, we must examine the record and determine
if the juvenile court had sufficient evidence before it to satisfy the clear-
and-convincing standard. In reviewing a challenge to the weight of the
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evidence, we review the record to determine whether the trial court lost
its way and created such a manifest miscarriage of justice in resolving
conflicts in the evidence that its judgment must be reversed.
(Internal citations and quotations omitted.) In re P/W Children, 1st Dist. Hamilton
No. C-200103, 2020-Ohio-3513, ¶ 27.
{¶12} As was the case here, an agency may request permanent custody as part
of an abuse, neglect, or dependency complaint under R.C. 2151.353(A)(4). R.C.
2151.353(A)(4) provides that, if a child is adjudicated an abused, neglected, or
dependent child, the juvenile court may “[c]ommit the child to the permanent custody
of a public children services agency,” if the court determines (1) “in accordance with
[R.C. 2151.414(E)] that the child cannot be placed with one of the child’s parents within
a reasonable time or should not be placed with either parent” and (2) “in accordance
with [R.C. 2151.414(D)(1)] that the permanent commitment is in the best interest of
the child.”
Cannot/Should Not Be Placed with Either Parent
{¶13} The first prong of the test under R.C. 2151.353(A)(4) requires a finding
by the court under R.C. 2151.414(E) that “a child cannot be placed with either parent
within a reasonable period of time or should not be placed with the parents.” R.C.
2151.414(E) provides a list of 16 factors that a court can consider in making its
determination, but “the plain language of the statute only requires a finding of one
R.C. 2151.414(E) factor to satisfy this part of the test.” In re S.H., 12th Dist. Butler
Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 20.
{¶14} Specifically with regard to mother, the trial court found that R.C.
2151.414(E)(11) applied. R.C. 2151.414(E)(11) permits the court to consider whether
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OHIO FIRST DISTRICT COURT OF APPEALS
the parent has had parental rights involuntarily terminated with respect
to a sibling of the child * * * and the parent has failed to provide clear
and convincing evidence to prove that, notwithstanding the prior
termination, the parent can provide a legally secure permanent
placement and adequate care for the health, welfare, and safety of the
child.
{¶15} The record shows that mother’s parental rights had been terminated
with respect to two of her children, and that a third child had been placed in the legal
custody of a relative. Therefore, under R.C. 2151.414(E)(11), mother had to show by
clear and convincing evidence that she could provide a safe and secure home for D.W.
Although mother initiated therapy sessions, the records from those visits indicate that
mother was not consistent in her efforts during those visits. Mother also did not show
that she had taken the necessary steps to stabilize her mental-health disorders.
Mother reported taking Lithium, but the prescription allegedly came from Good
Samaritan Hospital, the same hospital where D.W. was born. Mother did not provide
any documentation to support her claims of ongoing treatment, and she never
provided a treating physician’s name until the day of trial. Moreover, the FNC
facilitator and the HCJFS caseworker both testified to witnessing mother’s erratic
behavior, which at times became hostile or dangerous.
{¶16} Although the record shows that mother has made progress as compared
to her previous involuntary terminations of parental rights, the record supports the
trial court’s determination that mother cannot provide a legally secure placement for
D.W. and cannot adequately care for D.W. Therefore, the record supports the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court’s determination that D.W. cannot or should not be placed with mother under
R.C. 2151.414(E).
Best-Interest Factors
{¶17} The second prong of the test under R.C. 2151.353(A)(4) requires a
finding by the court that permanent custody is in the best interest of the child under
R.C. 2151.414(D)(1). In determining best interests under R.C. 2151.414(D)(1), the
court must consider:
(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 section
apply in relation to the parents and child.
R.C. 2151.414(D)(1).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} The trial court found that mother and D.W. had formed an attachment
as evidenced by the FNC facilitator’s testimony, but that D.W. had been in the care of
her foster family almost since birth. See R.C. 2151.414(D)(1)(a), (c). The trial court
found D.W. is too young to express her wishes. See R.C. 2151.414(D)(1)(b). The trial
court also found mother has not shown that she can provide a safe and permanent
home for D.W. because of her untreated mental-health issues, and no other relative
expressed a willingness to care for D.W. See R.C. 2151.414(D)(1)(d). The trial court
found that mother had her parental rights involuntarily terminated with respect to two
of her children. See R.C. 2151.414(E)(11).
{¶19} The record supports the trial court’s findings with regard to the best-
interest factors. Although mother has made improvements in her life by seeking out
therapy and getting an apartment, mother’s mental-health needs remain a barrier to
providing a safe and secure placement for D.W. The juvenile court’s decision to award
permanent custody is supported by clear and convincing evidence.
{¶20} We overrule mother’s assignment of error.
Conclusion
{¶21} We affirm the judgment of the juvenile court granting permanent
custody of the D.W to HCJFS.
Judgment affirmed.
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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