In re L.W.

[Cite as In re L.W., 2023-Ohio-958.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
In re L.W. Court of Appeals No. H-22-017
H-22-018
H-22-019
Trial Court No. DNA 2020 00109
DNA 2020 00110
DNA 2021 00079
DECISION AND JUDGMENT
Decided: March 23, 2023
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Richard H. Palau, for appellee
W. Alex Smith, for appellant, T.W.
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SULEK, J.
{¶ 1} In this consolidated appeal, appellant, T.W. (“mother”), appeals the
October 24, 2022 judgment of the Huron County Court of Common Pleas, Juvenile
Division, granting appellee Huron County Department of Job & Family Services’
(“HCDJFS”) motion for permanent custody of her minor children, L.W., M.L.W. and
M.S.W., and terminating her parental rights. Because the juvenile court’s determination
that permanent custody to HJDJFS was in children’s best interests was supported by clear
and convincing evidence, we affirm.
I. Facts and Procedural History
{¶ 2} On September 11, 2020, HCDJFS filed a complaint in dependency as to
minor siblings, L.W. and M.L.W. The complaint alleged that in August 2020, mother
was at a party and began shooting at a vehicle. M.W., then putative father of M.L.W.,
learned of the incident and drove, with minors in his vehicle, to confront mother. Upon
arrival, he and mother argued, and she shot him in the leg. At the time of the shooting,
M.W. had a gun in his pants pocket. Mother was charged with felonious assault,
domestic violence, and child endangerment. Following a hearing, emergency custody of
the children was awarded to HCDJFS. L.W. and M.L.W. were placed with a certified
foster family
{¶ 3} At a hearing on October 13, 2020, the juvenile court adjudicated the children
dependent and awarded temporary custody to HCDJFS. Mother was granted supervised
visitation at the agency and M.W. was granted supervised visitation of M.L.W. Based on
mother’s recommendation, HCDJFS conducted a nonrelative placement home study of
K.E., a family friend. She was rejected due to lack of honesty and mental health
concerns.
2.
{¶ 4} Reunification of the family was the goal of the initial case plan filed on
October 19, 2020. The case plan required mother attend mental health counseling and
parenting classes to specifically address violence and the effect of violence on her family.
She was to refrain from any domestic violence. Subsequent case plans reflected that
mother had been making some progress.
{¶ 5} The August 25, 2021 amended case plan provided that mother was eight
months pregnant and that M.W. was excluded from being the father of M.L.W.; he was
removed from the case plan. Mother and M.W. continued to have contact which, on
occasion, resulted in violence and police involvement. The Guardian ad Litem (“GAL”)
report expressed similar concerns that mother and M.W. were involved in a “volatile”
relationship. Mother was close to her delivery date and there were concerns about
marijuana and alcohol use. Reports indicated that she frequently attended visitation
smelling like marijuana. Her criminal charges remained pending.
{¶ 6} On September 16, 2021, an amended case plan was filed to include the birth
of M.S.W. who was placed in temporary custody of HCDJFS. In February 2022, the case
plan was again amended as M.L.W.’s father was identified as I.B., the father of mother’s
three older children that are not the subject of this appeal. He expressed interest in
gaining legal custody. DNA testing confirmed that M.W. was M.S.W.’s father, and he
expressed interest in gaining custody.
3.
{¶ 7} The March 15, 2022 GAL report reflected that the father of L.W. no longer
wished to be a part of the case plan and that M.L.W.’s father has failed to follow-through
with visitation. It further provided that M.S.W.’s father had not exercised visitation, had
not been approved for placement following a home study, and had been convicted of
felony carrying a concealed weapon.
{¶ 8} On April 8, 2022, the children’s foster parents filed a motion for legal
custody. HCDJFS then filed its motion for permanent custody on June 28, 2022. The
motion chronicled mother’s history with various area children services agencies dating
back to 2014. The motion stated that mother had been minimally compliant with the case
plan. She had been unsuccessfully discharged from mental health and drug and alcohol
counseling on three occasions and attended only two of 13 scheduled parenting classes.
Mother was arrested for a probation violation and had been incarcerated since September
13, 2021.
{¶ 9} HCDJFS’ motion further stated that after home studies for potential
placements were conducted and rejected and mother incarcerated, mother provided
family friend S.W.’s name as a potential placement for the children. Following a home
study, HCDJFS rejected the placement, stating that S.W. had ties to mother’s brother and
she had questioned his cooperation with police in a shooting investigation.
{¶ 10} The GAL’s July 22, 2022 report recommended that permanent custody be
awarded to HCDJFS. The GAL noted that the children share a close bond with their
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foster parents and that the two older children had been there nearly two years; for the
youngest, who was nearing the one-year mark, it was his sole residence.
{¶ 11} The permanent custody hearing commenced on September 14, 2022. The
family’s caseworker, the GAL, the foster mother, and I.B. testified. Relevant to this
appeal, the caseworker testified as to placement options provided by mother which
included S.W., a family friend. HCDJFS’ contact with S.W. began in March 2022.
Having met L.W. once, M.L.W. once or twice, and never meeting M.S.W., S.W. was
considered a stranger to the children. S.W. participated in supervised visitation with the
children. These hour-long visits were once or twice monthly for approximately two
months.
{¶ 12} While conducting the home study, HCDJFS discovered that S.W. was
friends with mother’s brother and had told him that he should not have cooperated with
police in relation to a weapons charge. This concerned HCDJFS because mother and her
family had issues with guns and violence. This, and the fact that S.W. was a stranger to
the children were the bases of denying the placement. HCDJFS informed S.W. that if she
disagreed with the decision, she could file a motion for legal custody. S.W. informed the
caseworker that she was not sure she wanted to file for legal custody because the children
were bonded with their foster family.
{¶ 13} The caseworker testified that early in the case mother wanted the children’s
maternal grandmother to be considered for placement but that she had an active warrant
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on a ten-day jail term that she needed to serve. Grandmother never indicated she was
ready to start the placement process.
{¶ 14} HCDJFS sought permanent custody of the children due to the parents’
failure to make case plan progress. The caseworker stated that the children were bonded
with their foster family and that the older two children had been in agency custody for
two years, the youngest for over one year.
{¶ 15} During her testimony, the GAL expressed her belief that permanent
custody was in the best interests of the children. As to L.W., her father was not involved
and asked not to be on the case plan. She has been in HCDJFS’ custody for over two
years and cannot be reunited with her mother. M.L.W. had very limited contact with her
father and there were allegations that he held a gun to the head of the mother of another
child and choked his sister in front of her children. Further, M.L.W.’s father failed to
complete a mental health assessment. M.L.W. has also been in HCDJFS custody for over
two years and could not be reunited with mother. Finally, M.S.W. could not be reunited
with his mother, and his father was on probation for carrying a concealed weapon and
had a history of domestic violence.
{¶ 16} When questioned about HCDJFS’ denial of S.W.’s home study, the GAL
agreed that it was denied, in part, because S.W. was not a relative. The GAL further
agreed that S.W.’s conversation with mother’s brother questioning his cooperation with
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police was enough to deny the home study. The GAL explained that an agency’s denial
of a home study is simply an indication that they do not support the placement.
{¶ 17} The GAL further testified that she had visited the children’s foster home on
multiple occasions and found it clean, spacious, and equipped with toys and proper food.
The foster parents indicated that in the event they adopted the children, they were open to
the children having a relationship with their mother; however, they had concerns due to
mother’s history of violence.
{¶ 18} Foster mother, A.M., testified that, in addition to mother’s children, she and
her husband have 14 and 12-year-old daughters in the home. The home has five
bedrooms and a gated above-ground pool. A.M. testified regarding the children’s various
medical and school interventions and their developmental gains.
{¶ 19} A.M. testified that they filed a legal custody motion to ensure that the
children stay together. She stated that the children are bonded and love each other and
that she and her husband love them. She believes the children love them as well. A.M.
testified that if permanent custody was awarded to HCDJFS, they would like to adopt the
children.
{¶ 20} On October 24, 2022, the juvenile court granted HCDJFS’ motion for
permanent custody and denied foster parents’ and I.B.’s motions for legal custody.
Applying R.C. 2151.414, the court concluded that permanent custody was in the
children’s best interests because L.W. and M.L.W. had been in agency custody for 24
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consecutive months and M.S.W. for 12 consecutive months, three days following his
birth. The court further found that the children cannot be placed with either parent or
should not be placed with either parent within a reasonable time. The court concluded
that mother has failed to remedy the conditions which caused the children to be placed
outside her home.
{¶ 21} The juvenile court, therefore, determined that agency custody was in the
children’s best interests because they were integrated into their foster home and share a
close bond with their foster parents. The foster parents promptly addressed any medical
concerns and facilitated therapies and services to aid their development. The foster
parents also expressed their intent to adopt the children.
{¶ 22} This appeal followed the juvenile court’s judgment.
II. Assignment of Error
The Trial Court erred in granting the Agency’s motion for
permanent custody.
III. Discussion
{¶ 23} In mother’s sole assignment of error, she argues that the juvenile court
erred in refusing to place the children with her friend, S.W. Mother also generally argues
that HCDJFS made no real efforts at reunification and, thus, was not acting in the best
interests of the children. Finally, mother raises concerns about the “transparency” of the
process.
8.
{¶ 24} A decision to terminate parental rights in a permanent custody case will not
be reversed unless it is against the manifest weight of the evidence. In re L.H., 6th Dist.
Lucas No. L-22-1078, 2022-Ohio-3263, ¶ 20, citing In re A.H., 6th Dist. Lucas No. L-11-
1057, 2011-Ohio-4857, ¶ 11. Reversal is proper only where its determined, after
weighing the evidence and all reasonable inferences including the credibility of the
witnesses, that the juvenile court clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed. In re T.J., 2021-Ohio-4085,
180 N.E.3d 706, ¶ 40 (6th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997).
{¶ 25} A juvenile court must find by clear and convincing evidence that
terminating parental rights and awarding permanent custody to a children services agency
satisfies the permanent custody test set forth in R.C. 2151.414. In re Z.C., 6th Dist.
Huron Nos. H-20-020, H-20-021, 2021-Ohio-763, ¶ 22, citing In re B.K., 6th Dist. Lucas
No. L-17-1082, 2017-Ohio-7773, ¶ 16. Clear and convincing evidence is defined as “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 facts a firm belief or
conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,
2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus.
9.
{¶ 26} The two-part test of R.C. 2151.414 requires the juvenile court to find, by
clear and convincing evidence, that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, 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.
(d) 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, or the
child has been in the temporary custody of one or more public children
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services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
R.C. 2151.414(B)(1)(a)-(e).
{¶ 27} The juvenile court must then determine whether permanent custody to the
agency is in the best interest of the child. R.C. 2151.414(A)(1). See In re Schaefer, 111
Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.3d 532, ¶ 32-37.
{¶ 28} In the present matter, the juvenile court’s conclusion that L.W. and M.L.W.
had been in agency custody for 24 consecutive months, and that M.S.W. had been in
agency custody for 12 consecutive months, R.C. 2151.414(B)(1)(d), is supported by clear
and convincing evidence and is undisputed. The court’s alternative conclusion, that the
children cannot or should not be place with either parent within a reasonable time, R.C.
2151.414(B)(1)(a), is supported by the record. As to mother, she admits to being
incarcerated until 2025; thus, she cannot care for the children.
11.
{¶ 29} Mother’s argument that S.W., her suggested placement, was not fully
considered or wrongly rejected by HCDJFS and the juvenile court is not persuasive.
HCDJFS conducted a home study which included a thorough background check. S.W.
was not recommended due to her involvement with mother’s brother and the fact that she
was not a relative and had no relationship with the children. The court agreed with the
determination. S.W. neither contested the finding nor filed a motion for legal custody.
{¶ 30} The juvenile court’s best interests analysis addressed the children’s need
for a legally secure placement. Mother did not provide S.W. as a possible placement
until March 2022. At that point, L.W. and M.L.W. had been in foster care since
September 2020, and M.S.W.’s only caregivers were his foster parents. Thus, competent
and credible evidence supports the court’s conclusion that permanent placement with
HCDJFS was in the children’s best interests. Mother’s assignment of error is not well-
taken.
IV. Conclusion
{¶ 31} For the foregoing reasons, the October 24, 2022 judgment of the Huron
County Court of Common Pleas, Juvenile Division, is affirmed. Pursuant to App.R. 24,
mother is ordered to pay the costs of this appeal.
Judgment affirmed.
12.
In re L.W.
H-22-017, H-22-018, H-22-019
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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