In re R.W.

[Cite as In re R.W., 2020-Ohio-4861.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. John W. Wise, P. J.
Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
R.W., III and A.W.
Case Nos. 2020 CA 00014 and 00015
MINOR CHILDREN OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case Nos. 2019 JCV
00993 and 2020 JCV 00994
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 7, 2020
APPEARANCES:
For Appellee For Appellant Father
BRANDON J. WALTENBAUGH AARON KOVALCHIK
STARK COUNTY JFS 116 Cleveland Avenue, NW
402 2nd Street, SE Suite 808
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case Nos. 2020 CA 00014 and 2020 CA 00015 2
Wise, P. J.
{¶ 1} Appellant-Father R.W. appeals from the judgment entered in Stark County
Court of Common Pleas, Juvenile Court Division, which terminated all parental rights,
privileges and responsibilities of the parents with regard to the minor children A.W. and
R.W. and ordered that permanent custody of the minor children be granted to Stark
County Department of Job and Family Services (SCJFS).
{¶ 2} This appeal is expedited and is being considered pursuant to
App.R.11.2(C). The relevant facts leading to this appeal are as follows:
STATEMENT OF THE FACTS AND CASE
{¶ 3} This appeal pertains to the permanent custody disposition of the two minor
children of Appellant-Father R.W. and Mother A.W.
{¶ 4} On July 10, 2019, Stark County Job and Family Services (hereinafter
"SCJFS") filed a complaint alleging the dependency, neglect, and/or abuse of R.W. (DOB
8/17/2016) and A.W. (DOB 11/29/2014).
{¶ 5} On July 11, 2019, the trial court held an emergency shelter care hearing
and found that probable cause existed for the involvement of SCJFS, continued residence
of the children in the home would be contrary to their best interests and welfare, and
SCJFS made reasonable efforts to prevent the need for placement and/or to make it
possible for the children to return home or remain in the home. The trial court also placed
the children into the emergency temporary custody of SCJFS.
{¶ 6} On October 3, 2019, the trial court continued the case for a later date after
Appellant requested counsel.
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 3
{¶ 7} On October 4, 2019, SCJFS filed a motion to dismiss the case without
prejudice, after it was determined that the case could not be disposed of before the
statutorily-mandated deadline. The trial court granted that motion.
{¶ 8} On October 4, 2019, SCJFS re-filed the permanent custody complaint
alleging the abuse, dependency and/or neglect of A.W. (DOB 11/29/2014) and R.W. III
(DOB 08/17/2016).
{¶ 9} On October 7, 2019, an emergency shelter care hearing was held where
the trial court found probable cause for the involvement of SCJFS, and that SCJFS had
made reasonable efforts to prevent the need for removal of the children from the home.
The trial court also awarded emergency temporary custody of the children to SCJFS.
{¶ 10} The concerns leading to these cases stem from history with the agency;
previously removing the children and a two year case plan. The concerns in those prior
cases, 2017JCV01010, and 2017JCV01011, centered on lack of supervision, poor home
conditions, substance abuse, domestic violence, and Mother allowing inappropriate
individuals around her children. In the prior cases, both of the children were found
neglected on November 3, 2017. Mother did complete case plan services, and custody
was returned to Mother on July 5, 2019. Agency involvement was terminated that same
day. Both Goodwill Parenting Services, (In home), and NYAP were to remain active in the
home after the closure.
{¶ 11} However, unknown to either the ongoing caseworker or the Guardian-ad-
Litem, Mother had been involved in a domestic violence incident on June 29, 2019.
According to the police report, Mother had been allowing Clarence O. to "hangout" at her
residence and around her children. Clarence became aggressive and was told to leave
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 4
the residence. He later returned and kicked the back door in to gain access to the
residence. Clarence became more aggressive when Mother refused to give him money.
Mother was then assaulted in what became an ongoing altercation throughout the home.
Mother eventually stabbed Clarence and fled to the children's bedroom. Mother and the
children then fled to the roof of the residence for protection. Responding officers found
Mother and all four of her children, including A.W. and R.W. III, on the roof of the
residence, screaming and crying. Clarence was located, arrested and charged with
Aggravated Burglary.
{¶ 12} Appellant-Mother failed to report this incident to either the ongoing
caseworker in the prior case or the trial court at the hearing held on July 5, 2019.
{¶ 13} The Agency learned of the incident on July 8, 2019. When confronted with
this information, Appellant-Mother claimed that the children were in their bedroom and
did not see anything. Appellant-Mother also denied that Clarence O. was living with her
and the children. However, Clarence reported to the responding officers that he did live
at the residence. Additionally, the responding officers found clothing belonging to
Clarence’s daughter in a bag in the basement. Mother later admitted to the staff at
Goodwill Parenting that she was romantically involved with Clarence, and that her son
J.H. came to the top of the stairs to ask if she was all right during the altercation. Mother
was uncooperative with Agency staff when confronted with the incident. She refused to
bring the children to the Agency for an interview or for them to be interviewed alone.
Mother also made the statement that this incident was no big deal, and this was all
"bullshit". Both A.W. and R.W. III have indicated that they do not feel safe in the care of
their Mother.
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 5
{¶ 14} Further, the children have disclosed that Mother was allowing them to have
phone contact with Appellant-Father R.W., in violation of the no contact order placed at
the end of the 2011 cases. The children indicated that Mother intends to marry Appellant-
Father R.W. when he is released from prison. There is a history of domestic violence and
substance abuse involving Appellant-Father R.W.
{¶ 15} Additionally, A.W. was found to be suffering from a severe case of sunburn
when he was removed, and K.H. had a wound on his buttocks that was diagnosed as a
staph infection. Mother had not taken either child for medical care for their injuries.
{¶ 16} On November 1, 2019, a pre-trial was held in the instant case and the case
was set for an evidentiary hearing to be held on December 12, 2019, along with the
permanent custody hearing. All prior orders remained in effect.
{¶ 17} On December 4, 2019, the Guardian ad Litem for the children submitted a
report recommending that the children be placed into the permanent custody of SCJFS.
Specifically, Attorney Guardado stated that she had no contact with Appellant-Father
throughout her more than two-year involvement with the family.
{¶ 18} On December 12, 2019, the trial court heard evidence on SCJFS's
complaint seeking permanent custody of the minor children. (T. at 5-90). The trial court
chose to take evidence for both the adjudication and the grounds portion of the permanent
custody together.
{¶ 19} The trial court first heard testimony from Stacy DeChellis, the supervising
caseworker in charge of the case for the past two and a half years. (T. at 10). Ms.
DeChellis testified that the children had been in the temporary custody of SCJFS from
August 16, 2017, to July 8, 2019. (T. at 11). Ms. DeChellis testified that the children were
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previously found to be dependent children. (T. at 11). Ms. DeChellis testified that SCJFS
was previously involved with the family due to Mother's drug use and ongoing domestic
violence issues. (T. at 14). She further testified that the children were again removed from
Mother's custody two days after they were returned to her custody, after it was discovered
that Mother had exposed the children to a "pretty significant" domestic violence incident.
(T. at 14). She testified that Mother was living with a man who kicked in the door,
threatened to harm the children, and that Mother stabbed the man. (T. at 14-15). Ms.
DeChellis testified that the children witnessed the entire incident, and escaped the home
by pushing out a window air conditioner system and crawling out. (T. at 15). She testified
that Mother did not believe the incident was "a big deal". (T. at 15-16).
{¶ 20} Ms. DeChellis further testified that Appellant-Father is "an extremely violent
individual". (T. at 17). She testified that there was a no contact order in place between
Appellant and the children. (T. at 17). She testified that Mother and Appellant-Father were
planning to continue their romantic involvement once he was released from prison,
despite the no contact order. (T. at 18). Ms. DeChellis testified that Appellant-Father did
not complete case plan services in the previous case and did not reduce the risk he posed
to the children. (T. at 18). Ms. DeChellis testified that Appellant-Father was in prison
throughout the prior case and was in prison at the time of the trial. (T. at 25). She further
testified that if Appellant-Father was released from prison, she would want him to
complete a risk assessment, a parenting assessment, a substance abuse assessment,
drug screens, and to follow through with all resulting recommendations. (T. at 26). Ms.
DeChellis testified that she believed Appellant-Father was scheduled to be released from
prison "about nine months from now". (T. at 27). She testified that Appellant-Father had
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"an extensive criminal record" and was considered "a wanted fugitive" during the previous
case, after momentarily escaping from jail. (T. at 29).
{¶ 21} The trial court next heard testimony from Chelsea Weigand, the ongoing
caseworker assigned to both the 2017 case and the current case. (T. at 32). Ms. Weigand
testified that the children had been in the temporary custody of SCJFS from August 16,
2017, to July 8, 2019, and then from July 10, 2019, until the date of the hearing. (T. at
33). She further testified that Appellant-Father's case plan on the previous case included
completing a parenting assessment and a substance abuse assessment, but that
Appellant did not complete those services. (T. at 34). Ms. Weigand testified that Mother
had indicated that Appellant-Father was violent, and that she was afraid of him. (T. at 35).
Ms. Weigand also testified that Appellant-Father had been in prison for most of the case
and that he had multiple warrants for his arrest. (T. at 35). Ms. Weigand testified that she
routinely sent Appellant-Father letters updating him about the case but that, despite the
letters, Appellant-Father never contacted her from prison asking about his children or the
case. (T. at 36). She further testified that Appellant-Father was not able to work case plan
services due to his own actions, which resulted in his being sent to prison. (T. at 45-47).
{¶ 22} The trial court next heard testimony from Carrie Schuring, who was
stipulated to by all parties as an expert witness. (T. at 51-52). Ms. Schuring completed
trauma evaluations on the children at issue in the cases. (T. at 51-52). She testified that
the children told her that they witnessed the domestic violence episode, and that they saw
blood and believed their Mother was going to be killed. (T. at 54). One of the children
referred to the individual stabbed by Appellant-Mother by the name of "Hoody", and that
he had been around before and was someone known to him. (T. at 55). One child
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 8
described a song that "Hoody" would sing at Appellant-Mother's home about murdering
people with a gun. (T. at 55). Ms. Schuring testified that she diagnosed the children she
examined with post-traumatic stress disorder and recommended counseling. (T. at 50-
58). She testified that one of the children told her that he did not feel safe in the home.
(T. at 56).
{¶ 23} The trial court next heard testimony from Amy Humrighouse, who was the
in-home parenting instructor from Goodwill Industries. (T. at 64). Ms. Humrighouse
testified that she worked with Mother from February 14th until July 9th. (T. at 65). She
further testified that she had no involvement with Appellant-Father. She testified that
Mother only completed one out of six goals set for her. Id. She further testified that
Mother’s home was extremely messy, with a lot of clutter. (T. at 66). She stated that
Mother was not able to consistently maintain a safe home. (T. at 67). She testified that
the children's behaviors were out of control, and that they were physically violent with
each other. (T. at 68). Ms. Humrighouse testified that Mother did not successfully
complete the program, and that she did not recommend the children be returned to
Mother. (T. at 65, 68).
{¶ 24} Appellant-Father testified on his own behalf. (T. at 73-79). He testified that
he did not believe he was a violent person. (T. at 74-75). He also testified that Mother
was a truthful person. (T. at 75). Appellant-Father testified that he had earned "about 9"
certificates in prison, but could not recall the details of the certificates. (T. at 75).
Appellant-Father explained that he did not work case plan services during the prior case
because he was "on the run". (T. at 76). He admitted during his testimony that he did not
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 9
have a relationship with his children. (T. at 77). Appellant-Father testified that he was not
scheduled to be released from prison until October of 2020. (T. at 78).
{¶ 25} During the Best Interest phase of the hearing, the trial court heard testimony
again from Caseworker Chelsea Weigand. (T. at 79-89). Ms. Weigand testified that the
children are all being set up with counseling to deal with their post-traumatic stress
disorder, which was diagnosed through their trauma evaluations. (T. at 80). She further
testified that the children were all placed together with their current foster parents during
the 2017 case and are extremely bonded to them and call them “mommy and daddy”. (T.
at 81). The children seek comfort from their foster parents and have stated that they want
to stay with them forever. Id. Ms. Weigand testified that the foster parents are interested
in adopting the children. Tr. at 85. She testified that there was no bond between the
children and Appellant-Father, and that he had not visited the children since October of
2017. (T. at 82). Ms. Weigand testified that permanent custody of the children was
"absolutely" in their best interests. (T. at 84).
{¶ 26} Attorney Kristen Guardado, Guardian ad Litem for the children, briefly made
a statement and recommended that permanent custody of the minor children be granted
to SCJFS. (T. at 89).
{¶ 27} The trial court took the matter under advisement, and on December 16,
2019, the trial court issued its findings of fact granting permanent custody of the minor
children to SCJFS and terminating both Mother and Appellant-Father's parental rights.
The trial court found that the children could not and should not be placed with Appellant-
Father or Mother at this time or within a reasonable period of time, that the children had
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been in the temporary custody of the Agency for more than 12 of 22 months, and that
permanent custody was in the children’s best interest.
{¶ 28} Appellant-Father now appeals, raising the following assignments of error:
ASSIGNMENTS OF ERROR
{¶ 29} "I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS
TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶ 30} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
I., II.
{¶ 31} We address Appellant-Father's assignments of error together. In his first
assignment of error, Appellant-Father argues the trial court erred in awarding permanent
custody to SCJFS because SCJFS failed to demonstrate that the minor children could
not be placed with him within a reasonable period of time. In his second assignment of
error, Appellant argues the trial court's finding that an award of permanent custody to
SCJFS is in the children’s best interest is against the manifest weight and sufficiency of
the evidence. We disagree.
{¶ 32} 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.
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 11
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).
{¶ 33} 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
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.
{¶ 34} 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.
{¶ 35} 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
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 12
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.
{¶ 36} 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.
{¶ 37} Here, R.C. §2151.414(B)(1)(d) applies as the children have been in the
temporary custody of the Agency for twelve or more months of the consecutive twenty-
two month period.
{¶ 38} 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.
{¶ 39} As set forth in detail in our statement of the facts and case, supra, Appellant-
Father failed to successfully complete his case plan. He was incarcerated for almost all
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 13
of the duration of the children’s cases and was still incarcerated at the time of the
permanent custody hearing. Appellant-Father has not visited with the children since
October, 2017. Testimony was also presented that Appellant-Father was “an extremely
violent individual” and that there was a no contact order in place between Appellant-
Father and the children. (T. at 17).
{¶ 40} Appellant-Father admitted that he had failed to complete his case plan,
citing the fact that he was on the run as the reason for his failure. He further admitted that
he had no relationship or bond with his minor children.
{¶ 41} The trial court found that Appellant-Father is unable to remedy the problems
that led to removal of the children or that he will remedy these problems within a
reasonable period of time.
{¶ 42} As to best interests, the GAL and Caseworker Weigand testified to their
opinions that permanent custody to SCJFS was in the children’s best interest. The trial
court found that both of the children had been diagnosed with post-traumatic stress
disorder, and that they were undergoing counseling at school. The court further found
that the children are placed together with the same foster family, with their other two
siblings, are bonded with their foster parents, and that they call them mommy and daddy.
It is the children’s wishes to remain with their foster family. The children feel safe with
their foster family. The children do not feel safe with Mother. Further, the foster parents
are interested in adopting the children. (T. at 85).
{¶ 43} A.W. and R.W. have no bond with their biological father, Appellant-Father
R.W. Appellant-Father is currently in prison for charges arising out of Coshocton County.
He has been incarcerated for the length of this case. R.W. is not scheduled to be released
Stark County, Case Nos. 2020 CA 00014 and 2010 CA 00015 14
until October of 2020. Due to his incarceration, the father is unable to adequately care for
A.W. or R.W. or attend to their needs. During the previous case and this case, there
was/is a no contact order in place between R.W. and the children A.W. and R.W.
{¶ 44} Additionally, the children had been in the temporary custody of the SCJFS
for twelve or more months of a consecutive twenty-two month period.
{¶ 45} The evidence presented at the hearing demonstrated that permanent
custody to SCJFS is therefore in the children’s best interest.
{¶ 46} Based upon the forgoing, we overrule Appellant-Father's first and second
assignments of error.
{¶ 47} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Stark County, Ohio, is affirmed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
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