In re K.A.W.

[Cite as In re K.A.W., 2022-Ohio-3254.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
IN RE: K.A.W. and T.A.W. :
:
: Appellate Case Nos. 2022-CA-32 and
: 2022-CA-33
:
: Trial Court Case Nos. 2020-C-00071-
: 0C and 2020-C-00072-0C
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
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OPINION
Rendered on the 16th day of September, 2022.
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MEGAN A. HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Appellee, Greene County Children Services Board
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Dayton, Ohio
45434
Attorney for Appellant, Mother
KELLY M. SCHROEDER, Atty. Reg. No. 0080637, 1 South Main Street, Suite 1800,
Dayton, Ohio 45402
Attorney for Appellant, Father
.............
TUCKER, P.J.
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{¶ 1} Mother and Father appeal from a judgment of the Greene County Court of
Common Pleas, Juvenile Division, which awarded permanent custody of their two minor
to the Greene County Children Services (GCCS). Because we find no error in the trial
court’s decision, the judgment is affirmed.
I. Facts and Procedural History
{¶ 2} Mother and Father are the biological parents of K.A.W. and T.A.W. who were
born in March 2020. At birth, both children tested positive for amphetamines and were
hospitalized, and a referral was made to GCCS. K.A.W. was released from the hospital
on April 9, 2020, and T.A.W. was released on April 22, 2020. Upon discharge from the
hospital, the children were placed with Brigid’s Path, where they received medically-
supervised withdrawal care. GCCS filed a dependency complaint on May 14, 2020.
{¶ 3} A case plan was implemented on June 12, 2020. The plan required Mother
to undergo alcohol and drug treatment as well as mental health treatment. Both parents
were required to take parenting classes and submit to random drug screenings.
{¶ 4} On June 17, 2020, the children were adjudicated dependent. They were
discharged from Brigid’s Path and placed in foster care on June 30, 2020.
{¶ 5} On July 16 and July 23, 2020, both parents tested positive for drugs. A
disposition hearing was conducted on July 29, 2020. Despite proper notification, neither
parent appeared for the hearing. Following the hearing, the court awarded temporary
custody of the children to GCCS. On November 5, 2020, both parents took part in a
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semi-annual review. Following a drug screen conducted in October 2020, Mother tested
positive for drugs; Father was negative.
{¶ 6} Mother was arrested on January 29, 2021, for two felonies and was placed
on intervention in lieu of conviction (ILC). Mother had two negative drug tests in March
2021.
{¶ 7} In April 2021, a first extension of temporary custody was entered. The case
plan was amended in August 2021. The plan added a requirement that Mother comply
with the terms of her ILC. The plan further required both parents to comply with a
visitation schedule and to keep GCCS updated on their current contact information.
Additionally, the plan added requirements for Father to undergo mental health, drug, and
alcohol assessments and to follow through with any recommended treatment. On
September 29, 2021, both parents had a positive drug screen.
{¶ 8} In October 2021, a second extension of temporary custody was granted to
GCCS. Additionally, the case plan was amended to require both parents to obtain stable
housing and employment. Father was also required to attend domestic violence classes.
Father had a positive drug screen in December 2021.
{¶ 9} GCCS filed a motion for permanent custody on January 20, 2022. In
February 2022, Mother was arrested for failing to report to her ILC officer. Following a
hearing, she was continued on ILC. Father also had a positive drug screen in February
2022.
{¶ 10} A hearing on permanent custody was set for March 22, 2022. However,
counsel for Mother informed the court that Mother had not been properly notified of the
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hearing, and the court rescheduled it. Mother was properly served with notice of the
rescheduled date. Father had been arrested at the courthouse on an outstanding
warrant, and he was served with notice of the rescheduled hearing in the Greene County
Jail.
{¶ 11} A hearing was conducted on April 22, 2022. The trial court then awarded
permanent custody of the children to GCCS. Mother and Father appeal.
II. Father’s Constitutional Arguments
{¶ 12} Father’s first assignment of error provides as follows:
THE TRIAL COURT’S DECISION GRANTING PERMANENT
CUSTODY TO THE AGENCY SHOULD BE REVERSED BECAUSE THE
AGENCY VIOLATED FATHER’S CONSTITUTIONAL RIGHTS.
{¶ 13} Father contends GCCS violated his equal protection and due process
rights.
{¶ 14} We first address the issue of due process of law. “The right to parent one's
children is a fundamental right.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d
49 (2000); In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). This fundamental
right is protected by the due process clause of the Fourteenth Amendment to the United
States Constitution and by Section 16, Article I of the Ohio Constitution. In re Hockstok,
98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16. “The fundamental requisites
of due process of law in any proceeding are notice and the opportunity to be heard.” In
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re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 17, citing Armstrong v.
Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
{¶ 15} The only issue we can discern regarding the denial of due process is
Father’s claim that GCCS failed to notify him that the agency was seeking permanent
custody of the children. We find this claim lacking in merit.
{¶ 16} The record indicates that the GCCS caseworker had multiple conversations
with both parents informing them that failure to comply with the case plans would lead the
agency to seek an award of permanent custody. The caseworker also informed the
parents of the timeframe for extending temporary custody and seeking permanent
custody. Most importantly, it is clear from the record that Father was afforded ample
notice of the permanent custody hearing, which he attended with counsel. In sum, we
find nothing in this record to support a finding that Father was denied his right to due
process of law.
{¶ 17} Father next claims he was denied equal protection because GCCS did not
treat him and Mother equally. In support, he cites Sessions v. Morales-Santana, __ U.S.
__, 137 S.Ct. 1678, 198 L.Ed.2d 150 (2017), for the proposition that “different treatment
of fathers and mothers discriminates based on sex and violates the equal protection
guarantee of the U.S. Constitution and Ohio Constitution.” We have reviewed Sessions
and conclude it has no bearing on this case as it involved gender-based federal statutory
distinctions between mothers and fathers in relation to their ability to pass their United
States citizenship status to their children. Here, Father has not alleged or demonstrated
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any gender-based statutory distinctions.
{¶ 18} Instead, Father’s complaint is based upon what he deems to be numerous
failures by GCCS to treat him the same as Mother. He contends the agency failed to
obtain contact information from him and failed to communicate with him. He also
specifically refers to a meeting to discuss the case plan objectives, which he claims the
agency held with Mother without including him.
{¶ 19} A review of the record indicates that the current caseworker, who started
working on the case in May 2020, did not seek contact information for Father because he
was living with Mother while the children were at Brigid’s Path. However, the caseworker
testified that contact information would have been gathered by the initial caseworker, and
that relevant information was subsequently obtained from Father. The caseworker
testified that over the course of this case, Father lived in at least six homes and had more
than five phone numbers and three e-mail accounts. She testified that, in addition to
calling Father and sending letters to his various residences, she would also send him e-
mails. However, she indicated there were times she was unable to contact him because
of the changes in his contact information, and that this situation continued even after the
case plan was amended to require the parents to keep the agency informed of their
updated contact information. With regard to the meeting to discuss the case plan, the
record sufficiently demonstrates that the caseworker informed Father of the meeting.
{¶ 20} Father next claims that he was treated differently from Mother because the
caseworker failed to inform him that he could reside at Brigid’s Path with the children.
Additionally, he claims GCCS conducted a home study for him, which was
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“discriminatory” because GCCS did not “require the same for mothers.”
{¶ 21} There is nothing in this record to indicate that the caseworker informed
either parent they could reside with the children at Brigid’s Path. And the record shows
the home study was conducted on a residence in which the parents were living together.
The record does not support a finding of differential treatment.
{¶ 22} Finally, Father claims GCCS asked Mother, but failed to ask him, about any
relatives with whom the children could be placed. There is evidence that Father was not
initially asked about relatives with whom to place the child. However, the record
indicates that Father was asked about this multiple times during the pendency of the case,
and he did not present GCCS with any potential placements. Thus, we find no merit in
this claim.
{¶ 23} Finally, Father appears to argue that his rights were violated because
GCCS did not release the children to his care following their stay at Brigid’s Path. He
correctly notes that GCCS was initially more concerned with Mother’s behavior than with
his. He also claims that GCCS had no issue with his parenting at the point it placed the
children with the foster parents. This, however, is a misstatement of the record. Father
was released from incarceration for domestic violence just one month before the birth of
the children. The caseworker indicated that during the pendency of the case that GCCS
received reports of domestic violence between Father and Mother in which Father was
alleged to be the aggressor. The parents lived with each other for the majority of the
pendency of this case. Further, while the children were at Brigid’s Path, the parents were
observed fighting at the facility. The concern about domestic violence issues led, in part,
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to the agency’s decision to place the children in foster care rather than with Father. We
cannot discern how, under these facts, Father was deprived of his equal protection or due
process rights.
{¶ 24} Father has failed to establish that the actions of the agency resulted in a
denial of his constitutional rights. Accordingly, Father’s first assignment of error is
overruled.
III. Permanent Custody Determination
{¶ 25} The sole assignment of error asserted by Mother and the second
assignment of error asserted by Father state, respectively, as follows:
THE JUVENILE COURT ERRED WHEN IT GRANTED
PERMANENT CUSTODY OF THE CHILDREN TO GCCS.
THE TRIAL COURT’S DECISION GRANTING PERMANENT
CUSTODY TO THE AGENCY WAS NOT IN THE CHILDREN’S BEST
INTEREST.
{¶ 26} Both parents claim the record does not support the trial court’s finding that
an award of custody to GCCS was in the best interest of the children.
{¶ 27} Relevant to this case, R.C. 2151.414, authorizes a juvenile court to award
permanent custody to a children services agency when it finds by clear and convincing
evidence that (1) granting permanent custody to the agency is in the best interest of the
child and (2) the child has been in the temporary custody of the agency for 12 or more
months of a consecutive 22-month period. R.C. 2151.414(B)(1)((d). “Clear and
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convincing evidence is that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases,” and which will produce in the mind of the
trier of fact a firm belief or conviction as to the facts sought to be established. Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 28} Here, the trial court made the findings required to award GCCS permanent
custody. Among other things, it found by clear and convincing evidence that the children
had been in GCCS's temporary custody for more than 12 months of a consecutive 22-
month period and that an award of permanent custody to GCCS was in the children's best
interest. On appeal, neither Mother nor Father disputes that the children had been in the
temporary custody of GCCS for the requisite time. Instead, both Mother and Father
contest the whether the trial court's best-interest finding was supported by clear and
convincing evidence.
{¶ 29} The best-interest analysis, as set forth in R.C. 2151.414(D), directs the trial
court to consider all relevant factors, including but not limited to: (1) the interaction and
interrelationship of the child with the child's parents, relatives, foster parents and any other
person who may significantly affect the child; (2) the wishes of the child; (3) 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 placement agencies for 12 or
more months of a consecutive 22-month period; (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 to the agency; and (5) whether any of the factors in R.C.
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2151.414(E)(7) through (11) are applicable.
{¶ 30} The record shows that the children were bonded with their foster parents
and foster sibling. The foster parents had expressed a desire to adopt both of the
children. The children were doing well, were meeting all developmental milestones, and
the foster parents were meeting T.A.W.’s medical needs.1
{¶ 31} Conversely, the children had never lived with Mother or Father and there
was no evidence that they were bonded to their biological parents. While early visitations
went well, the record demonstrates that the parents were sporadic in attending and that
they did not exercise all their permitted visitations. Additionally, neither parent exercised
visitation after September 2, 2021. The children had never met Mother’s other five
children, nor had they met Father’s other child. There were no other relatives with whom
the children had a relationship.
{¶ 32} While the children were too young to express their wishes, the guardian ad
litem recommended an award of permanent custody to GCCS.
{¶ 33} The children had been in the care of GCCS since their birth. At the time of
the permanent custody hearing, they had lived with the same foster family for
approximately 18 months. Also, at the time of the hearing, Mother had started a six-
month lockdown treatment program in order to comply with her probation, and Father had
not demonstrated that he was able to provide stable housing for the children. Both
parents had tested positive for drugs during the pendency of the case, and they had not
completed their respective case plans.
1T.A.W. has a heart condition which required medication and also required the foster
parents to listen to his heart beat daily.
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{¶ 34} Based on this evidence, the juvenile court concluded that the best interest
of the children required a termination of parental rights and an award of permanent
custody to GCCS.
{¶ 35} A trial court's decision to grant permanent custody to the State and
terminate parental rights must be supported by clear and convincing evidence. In re
L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-
discretion standard, and we will not disturb the trial court’s judgment on evidentiary
grounds “if the record contains competent, credible evidence by which the court could
have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established.” (Citation omitted.) Id.; see also In
re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-5697, ¶ 7. The phrase “abuse of
discretion” implies a decision that is unreasonable, arbitrary, or unconscionable. S.S. at
¶ 7.
{¶ 36} On this record, the juvenile court did not err in terminating Mother's and
Father’s parental rights and awarding permanent custody to GCCS; there was clear and
convincing evidence that the children had been in the temporary custody of GCCS for
more than 12 months of a consecutive 22-month period and that an award of permanent
custody was in the children's best interest. Thus, we find no abuse of discretion and
have no basis to reverse the decision of the juvenile court.
{¶ 37} Accordingly, Mother’s sole assignment of error and Father’s second
assignment of error are overruled.
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IV. Conclusion
{¶ 38} The assignments of error are overruled.
{¶ 39} The judgment of the juvenile court is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Megan A. Hammond
Robert Alan Brenner
Kelly M. Schroeder
Jan Stewart, CASA
Hon. Amy H. Lewis