In re C.W.

[Cite as In re C.W., 2020-Ohio-6869.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re C.W., H.W., F.W. Court of Appeals Nos. L-20-1125
L-20-1129
Trial Court No. JC 19272468
DECISION AND JUDGMENT
Decided: December 23, 2020
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Laurel A. Kendall, for appellants.
Rebecca L. West-Estell, for appellee.
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MAYLE, J.
I. Introduction
{¶ 1} In this consolidated appeal, the appellants, T.W. (“mother”) and J.W.
(“father”), appeal the July 15, 2020 judgment of the Lucas County Court of Common
Pleas, Juvenile Division, terminating their parental rights and granting permanent custody
of their children, C.W., H.W., and F.W., to Lucas County Children Services (“LCCS”),
the appellee herein. For the following reasons, we affirm.
II. Background
A. The family’s involvement with LCCS.
{¶ 2} LCCS first became involved with this family in November of 2017 when
mother and her three children were living with mother’s then-husband, T.P. (hereinafter
“stepfather”) and his son, B.P. (hereinafter “stepbrother”). The referral involved reports
that stepfather “chokes and hits [stepson]” (i.e., his own son) “on the back of the head.”
In response, “LCCS worked with the family through an alternative response unit.”
(Complaint at ¶ 5(a)).
{¶ 3} On November 13, 2018, LCCS received a second referral, again with respect
to stepbrother, who was alleged to be “hoarding food” at school because he “wasn’t
eating at home or getting anything to drink” and also because he was “having to care for
his younger [step-siblings].” Stepbrother reported that mother (i.e., his stepmother) had
called the police on him for “stealing food.” An assessments caseworker for LCCS made
a visit to the home and met with mom, stepfather, and stepbrother. While investigating
the allegations surrounding stepbrother—who is not the subject of this case—the
caseworker identified serious concerns about mother’s children. At the time, C.W. was
six years old. H.W. was four, and F.W. was two.
{¶ 4} On January 2, 2019, another referral was made about a claim of physical
abuse sustained by stepbrother. This was considered a “one-hour crisis,” causing the
assessment caseworker to interview stepbrother and C.W. at school, outside the presence
of mother and stepfather. Stepbrother reported that “he hadn’t had breakfast or lunch so
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he was hungry. So [he] and his [step-siblings] stole some Cheetos, [and] dad whooped
him [with] eight hits. And then * * * [mother] came home [and said] ‘I didn’t see him
get whooped.’ * * * [so] [stepbrother] was pushed to the floor [and] hit between 12 to 21
times with a belt.” The caseworker observed that stepbrother had “a lot of scratches all
over his face,” a “goose egg on the side of his head [that was] smeared with a little bit of
blood,” and a “red area on his back and on his butt cheek.” C.W. affirmed that
stepbrother had been hit with a belt. The assessments caseworker went to the home, and
stepfather “admitted to whooping all the children” and that he had gone “overboard.”
Mother reported that she “was gone” at the time. But, a six-year-old niece, who was
visiting, confirmed that, when mother came home, she said, “whip him again because I
didn’t see it.” The caseworker “checked” H.W. and F.W., and she observed that H.W.
“had some bruising to her butt area.” Mother denied any knowledge of the bruises.
{¶ 5} The caseworker observed that there was “plenty of food in the kitchen” but
that there were “a lot of padlocks on the kitchen door.” The parents’ room and the
bathroom were also padlocked. The caseworker testified that mom’s “punishment
seemed extremely excessive,” like punishing H.W., who was four, by requiring her “to sit
in a room or bed * * * for four days.” Another “example” cited by the caseworker was
that when the caseworker “tried to talk to [mom]” about how long stepbrother had been
“on his punishment” and “without snacks” and deprived of “his toys,” mom responded,
“how the hell do you expect me to know?”
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{¶ 6} The children reported that their home had mice in it, and that mother used a
BB gun to shoot the mice. Mother also “point[ed] [the gun] at the children and their
[stepfather].”
{¶ 7} Based upon the above, the caseworker told mother that she “would like”
mother to “go ahead” and have a mental health assessment, but mom was “adamant” that
an assessment was not necessary because she was already treating with a “psychiatrist,”
who had prescribed Percocet—for back pain—which, according to mother, he would not
do unless she was “mentally stable.”
{¶ 8} On January 3, 2019, the children were examined at the agency, before they
were placed with foster parents. Melinda Aschliman, R.N. conducted those exams. She
described H.W. as having “dirty clothes, dirty underwear, dirty hair,” a “fine rash all over
her body * * * possibly [from] bug bites, * * * a dark bruise on her center, upper chest
* * * bruises on her legs [and] deep layers of a bruise” on her right buttock. H.W. “didn’t
talk,” but stepbrother told the nurse that “she had been spanked.” An LCCS supervisor,
Amy Cox, assisted with the assessments. She described the girls as “very, very skinny,”
and that they “smell[ed] [of] urine.” Based upon “the yellow hue” of their underwear, “it
appeared that there were wearing those underwear for an extended period of time.”
B. LCCS files a complaint, and a case plan is developed.
{¶ 9} On January 4, 2019, LCCS filed a complaint in dependency, neglect and
abuse as to all three children and a motion to place the children into shelter care. In
addition to the allegations raised above, the complaint also alleged that the children’s
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father was J.W. (“father”), that mother and father had a history of domestic violence
between them, that father lived in Kentucky, and that efforts by LCCS to contact him
were unsuccessful. After a hearing that same day before a magistrate, LCCS was granted
interim, temporary custody of C.W., H.W., and F.W.
{¶ 10} An adjudicatory hearing was held on March 12, 2019. The purpose of an
adjudicatory hearing is “to determine whether a child is * * * abused, neglected, or
dependent or is otherwise within the jurisdiction of the court.” Juv.R. 2(B). Mother and
father attended the hearing and consented to a finding of abuse, neglect and dependency.
At the conclusion of the hearing, LCCS was granted temporary custody.
{¶ 11} A case plan was developed that ordered mother to attend parenting classes
and to complete a dual assessment. Months later, in October of 2019, the case plan was
amended to include trauma and domestic violence therapy, following an incident of
domestic violence between mother and stepfather. The case plan also provided for
supervised, Level 1 visitation (the most restrictive) at LCCS for both parents. Finally, the
case plan ordered trauma counseling for C.W. and developmental assessments for H.W.
and F.W. Separately, a dual assessment and parenting classes were ordered as to father.
C. LCCS moves for permanent custody, and a trial is held.
{¶ 12} On March 11, 2020, LCCS filed a motion for permanent custody. A three-
day trial was held, beginning on June 22, 2020. In all, 12 witnesses testified: an LCCS
assessment caseworker (Barb Cummins), C.W.’s therapist (Sandra Pessefall), H.W. and
F.W.’s therapist (Dena Shafer, LISW), a child abuse expert (Randall Schlievert, M.D.),
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an LCCS supervisor (Amy Cox), the foster-father (Ju.P.), the foster-mother (Je.P.), an
LCCS nurse (Melinda Aschliman, R.N.), the LCCS caseworker (Cherese Mitchell-El),
mother, and the GAL (Sharon Fitzgerald).
{¶ 13} LCCS assessment caseworker Barb Cummins testified that, although this
case began with allegations of physical abuse, the agency suspected that the children had
also been abused sexually, based upon reports by the children that surfaced in April of
2020. At that time, “C.W. [began] talking about having to sleep naked with his mother in
bed, that his mother was touching his penis, that he had to take cold showers with her.
That he would urinate on the bathroom wall and she would lick if off. Information about
seeing [mother] and [stepfather] having sex, doing what dogs do. Imitating the noises
they make in their sexual encounter.” Cummins did not have to “pry anything out of
C.W.”; rather, he “spit out” what had “happened” and was “adamant” that it had
occurred. C.W. disclosed much of the abuse by writing letters, which he asked Cummins
to give to “the judge.” H.W. also disclosed that mother and stepfather “had touched her
vagina.” Cummins concluded that the children had “been exposed to something sexual
* * * because the [two older children], especially [C.W.] were descriptive [as to] * * *
what was going in where.” She believes that “they [were] exposed to a lot of sexual
abuse,” and she added that each was “very afraid of going home.”
{¶ 14} As a result of the sex abuse claims, LCCS referred the children to Dr.
Schlievert who interviewed and assessed the children for “possible sexual abuse.” While
Dr. Schlievert had “concerns,” he concluded that there was not enough “information that
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was conveyed to [him] directly by the children” to make a finding that sexual abuse had
occurred in this case.
The children’s therapists
{¶ 15} Sandra Pessefall is C.W.’s therapist, who met with C.W. at least 70 times
by the time of trial. Pessefall diagnosed C.W. with post-traumatic stress disorder as a
result of witnessing domestic violence between stepfather and mother and from being
physically and sexually abused by them. According to her, C.W. “consistently” reported
that he did not want to “have anything to do with his biological mother,” due to his “deep
seeded fear” of her. In March of 2020, Pessefall wrote the caseworker to recommend that
visitation, even by video, be stopped because each visit with mother was a “set back” for
C.W. and “re-traumatized him.” She added that the video visits were, in some ways,
worse than the in-person visits because they “brought [mother] into his safe place. He
feels safe in the foster home. * * * [H]aving her there made it so that he didn’t feel that
safe anymore.” Pessefall testified that C.W. “really started opening up more once the
visitations stopped” in the spring of 2020. Pessefall opined that although the trauma
therapy is helping C.W., he will likely need “to work” on his mental health for “the rest
of his life.”
{¶ 16} Next, Dena Shafer testified. Ms. Shafer conducted “play therapy” with
H.W. and F.W., beginning in July of 2019. As a result of that therapy, she diagnosed
“unspecified trauma related disorder” as to both girls and a speech delay, as to H.W. In
sessions, H.W. displayed “aggressive behavior.” Shafer opined that H.W. lacks an
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emotional bond with mother, and she “ignore[d]” questions about father or responded
that she “didn’t want to talk” about him. Although younger, F.W. was “more verbal”
than H.W. She told Shafer that mother “bite my vagina” [sic], and when asked if she
wanted to visit with mother, F.W. responded, “No, her hurt me.” [Sic]. Like her siblings,
F.W. did not appear to have a bond with either parent.
{¶ 17} Shafer also recommended that visits between the girls and mother cease
because “their anxiety would increase before and after visits” causing “bedwetting,
diarrhea [and] aggressive behaviors.” Those behaviors decreased, though not entirely,
once the visits were halted.
The foster parents
{¶ 18} The children were placed in the foster home on the evening of January 3,
2019, and remained there, 18 months later, when the hearing occurred.
{¶ 19} According to the foster parents, C.W. “didn’t really talk a lot” when he
arrived and they described him as “zombie-like for quite a while.” In consultation with
C.W.’s physician, he was “taken off” a medication used to treat ADHD, and became a
“totally different kid. Spunky, perky, happy, just wanted to play with everybody. He
loves to be outside. Just night and day difference.” Over time, C.W. has also “open[ed]
up” and become “more talkative.” When the visits with mother were in person, “a
pattern developed” whereby C.W. would misbehave in school and go into “panic mode”
as they drove from their home to the location of the visits. After the visits, C.W. would
wet the bed, have temper tantrums and “zone out.” C.W. was given a notebook to write
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down “his thoughts and feelings,” and he wrote frequent notes to the caseworker, the
court, his foster parents and the GAL, stating that he did not want to go on any more
visits. In those notes, he also described the abuse he sustained. Foster father testified
that C.W. wrote of “not being fed, being kept in a room, locked in a room. Having to
bang on walls to be heard.” He also disclosed that mother “touched his penis and his
butt,” that he was “handcuffed” to stepbrother and forced to watch his sisters eat
McDonalds while the boys were denied food, that he was “whooped with a belt,” that
stepfather “punched him in the face” and threw a television at mother. In April of 2020,
C.W. divulged “sexual-type things” to foster mother, including that mother had “put her
finger in [C.W.’s] butt.” Foster mother reported the abuse to C.W.’s therapist.
{¶ 20} Foster father testified that C.W. is “very into sports now,” especially
soccer. Foster father taught him how to play baseball, and their time together is either
“sports related” or “just talking [about how to] be a good, solid man.”
{¶ 21} When H.W arrived, she was “very timid” and her speech was “barely
understand[able].” She used inappropriate language, calling foster mother a “yucky
bitch.” F.W., who was two years old, “called everybody in [the] house a bitch
constantly.” Both used to “scream” at bath time because they assumed that the bath
would be filled with cold water. And, “both of the girls from the beginning were
adamant that someone had touched their vagina without using exact terms” according to
foster mother. H.W. also reported physical abuse that was similar to the claims alleged
by C.W.
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{¶ 22} When H.W., who was four years old, arrived she “didn’t speak,” and it was
thought that she had “selective mutism.” “[T]o this day,” [when] confronted with
anything at all, [like forgetting to flush the toilet], she freezes and won’t speak.” Within
a couple of days of her placement, however, H.W. “really loosened up” and began to
“laugh and smile.” Foster father said it has been “incredible” to witness her
improvement. He described her as “real friendly [and] fun loving” girl who loves
pageants and cheerleading. She was “very proud” to have earned “first place” in their
town’s Christmas pageant.
{¶ 23} The foster parents described F.W. as a “spitfire” who “wants to do
everything that her big sister does.” They allowed her to play T-ball but are “making her
wait a little bit [to participate in cheerleading] until [she gets] better with listening.” F.W.
told her foster parents that she is “scared” of mother. Although she does not have a lot of
“memory of the physical abuse,” she “seems to recall * * * the belt” and “being
whooped.” And “she walked around the longest time saying [mother] bite my vagina.”
{¶ 24} Foster mother described similar acting out by the girls around the time of
visits, including fits of “screaming and crying” and “bedwetting” and “diarrhea” and
“nightmares.” She testified that the children “never wanted to visit” mother, and she
could only recall the children visiting with father “two, maybe three” times.
{¶ 25} Although the foster parents have had other foster children in their home,
this was their “first kind of permanent placement” and they “would” be interested in
adopting them. Their “biggest concern is * * * that [the children are] safe.”
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The LCCS caseworker
{¶ 26} The caseworker testified that, as part of its investigation, LCCS learned that
mother sustained “a lot of trauma during her [own] childhood,” including claims that
“there was no food in the [mother’s childhood] home [and] cupboards were locked.”
{¶ 27} With regard to the case plan, the caseworker testified that mother
completed the dual assessment and later, trauma counseling with her own provider, who,
while not a “psychiatrist,” was qualified to provide trauma counseling. The caseworker
described mother’s participation in parenting classes as “consistent” and that she
“completed the class successfully.” As to domestic violence therapy, mother initially
resisted it on the basis that she was no longer living with either abuser, i.e., father or
stepfather. Ultimately, however, mother began the classes, then took a six-month hiatus,
before re-engaging and “substantially completing” the course. Despite her near-total
completion of the coursework identified in her case plan, LCCS was not satisfied with
mother’s progress because she “never did take any * * * responsibility” for the harm
done to the children. Instead, as to each and every claim, mother either denied any
knowledge of it, said her kids were lying or “being coached,” or blamed stepfather for her
“situation.”
{¶ 28} As for father, the caseworker offered to arrange a home-study in Kentucky
after father expressed his intention “to get the kids to take them back [there].” Kentucky
denied the request for an “interstate compact placement” due to father’s lack of adequate
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housing and employment and because “he hadn’t completed a dual diagnostic assessment
and parenting classes as requested of him by the state of Ohio.”
{¶ 29} In all, father visited with the children two or three times, the last of which
occurred in October of 2019. In December of 2019, the caseworker learned—from his
mother—that father was “homeless” and that his “phone was off,” and she encouraged
him to call her so she could “help him.” Father called the caseworker in March of 2020.
At that time, father reported that he was living in Perrysburg, Ohio, with a friend, who
was reportedly a convicted sex offender. Father told the caseworker that he left
Kentucky after his girlfriend (and mother to his new baby) reported him for domestic
violence. When told that LCCS was seeking permanent custody, father told the
caseworker that he had always “suspected sexual abuse,” but had not reported it to
anyone. Father did not ask to see the children.
{¶ 30} As a result of his dual assessment, father was diagnosed with anxiety and
depression. Although he attended some counseling sessions, he failed to re-engage after
the pandemic began, despite being provided with a tablet from the provider so that
sessions could continue. Father told the caseworker that “he just hadn’t set it up yet.”
Father never enrolled in parenting classes.
{¶ 31} The caseworker testified that it would be in the children’s best interest if
the agency was awarded permanent custody because the children, even a year-and-one-
half later, remain “traumatized [by] the abuse.” In the caseworker’s experience, “kids
* * * want to go back home to their parents, even if the abuse was bad.” But, she added,
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“I never had a case like this where children have sustained so much abuse and then they
say they don’t want to go home. This is actually my first.”
Mother
{¶ 32} Mother’s refusal to accept responsibility was on full display at the hearing.
For example, when asked if she “realized that waiting that six months [to re-engage in
domestic violence services] prolonged [her] reunification with her children,” mother
responded, “that’s not my fault.” When asked if her “thinking” had changed with regard
to padlocks—in light of her parenting classes—mother answered, “Yes. I have alarms on
all the doors now. No more locks. Just alarms.” Mother denied that the children ever
witnessed her shooting mice because they were “asleep in bed when [she] shot the mice.”
Besides, she said, “[i]t was a little BB gun. It was not going to hurt them at all.” She
volunteered that she taught her “6 year old * * * how to work the gun [safely] * * *
which is not against the law.” Mother described her children as “gullible,” and said she
was not surprised that they no longer wanted to visit with her after “living in this rich
girl’s home who tells them things.” Finally, as to all the evidence of abuse in this case,
mother would only acknowledge a single incident and that was to stepbrother, at the
hands of stepfather. Mother said that her “whole screw up in all of this is that I was
trying to take care of a kid that wasn’t mine.”
{¶ 33} Mother was willing to admit that her own experience in foster care was
bad, and because of it, she “hate[s]” her own mother “for what she [did]” like “beating
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the shit out of [her] all the time [and] selling [her] out [and] not taking care of her.” But,
she added that she does not “let that stuff bother her now [because] [l]ife is too short.”
The guardian ad litem
{¶ 34} The children’s guardian ad litem and attorney was appointed by the court
on January 9, 2019. She conducted an independent investigation in this case and
authored a report dated June 22, 2020. Throughout the course of the case, the GAL
observed five or six visits, met the children about twelve times, and spoke with the
caseworkers, therapists, mother, father, foster parents, visitation “guards” and two
parenting instructors.
{¶ 35} The GAL recommended that it was in the best interests of the children that
LCCS be awarded permanent custody. She explained that, although the parents had been
“offered all kinds of services,” neither “learned to look at their [own] trauma” or
recognize that the cycle of abuse was continuing in the lives of their children.
{¶ 36} The GAL found the children’s reports of sexual abuse (against mother) and
physical abuse (against mother and stepfather) credible because the “kinds of things” the
children discussed were “so far beyond their developmental imagination [that] they must
have experienced at least some of it.” The GAL criticized mother’s refusal to take
responsibility for “what happened in the home,” noting that “[a]t the very least,” she
knew stepfather was violent because she experienced it firsthand when he put her in the
hospital with a “dislocated foot.” And, she questioned mother’s denial that mother did
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not observe bruising on her children, “given the number of times the kids talked about not
having any clothes on in the house.”
{¶ 37} As for dad, it was the GAL’s “impression that he * * * left his children
behind a long time ago.” In the beginning, when dad lived in Kentucky, the GAL
thought that he was “committed,” and she “did her darnedest” to “get the funding for
him” to obtain services there and to help him travel back and forth. But then he just
“stopped” communicating with her over the course of nine months. The GAL learned
later that dad “was up here with his ex-wife (i.e., mother) for a couple of weeks” but
failed to let anyone know so that visits could be “set up * * * with the kids.” By the
GAL’s “calculations, he only visited for two hours with his children since the case was
opened.” She observed one of those visits and described his behavior as appropriate and
that he “seemed comfortable” with them. The GAL described dad as “living * * *
parallel,” to this case and noted that he was “not even asking to have the children.”
{¶ 38} Finally, the GAL opined that it would be “devastating” for the children if
they were returned to mother’s care, based upon their “demonstrated anxiety, terror,
sadness, fear and physical manifestation of all those things.” She added that, “seeing
how much they don’t want to go [to mother’s] home, a ruling for them to go home I think
would be catastrophic, especially for [C.W.].” In her 35 years of doing guardian ad litem
work, the GAL testified that this case ranked “among the worst just from the intensity of
the children’s disclosures.”
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D. The court grants LCCS’s motion.
{¶ 39} On July 15, 2020, the trial court granted LCCS’s motion, terminating
mother and father’s parental rights and awarding permanent custody of C.W., H.W. and
F.W. to LCCS. The parents appealed and assigned the following errors for our review:
I. The evidence supporting the trial court’s finding that the minor
children here could not be returned to their mother was not clear and
convincing when she had substantially completed her case plan services,
and had visited regularly with the children, and when time remained in the
case.
II. The evidence supporting the trial court’s finding that the minor
children here could not be returned to their father was not clear and
convincing with [sic] he had engaged in case plan services; when his
interactions with the children were considered appropriate; and when time
remained on the case.
III. Law and Analysis
{¶ 40} R.C. 2151.414 sets forth “specific findings a juvenile court must make
before granting an agency’s motion for permanent custody of a child.” In re A.M., Slip
Opinion No. 2020-Ohio-5102, ¶ 18, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, 862 N.E.2d 816, ¶ 22. As relevant here, the court must find by clear and
convincing evidence “(1) that one or more of the conditions in R.C. 2151.414(B)(1)(a)
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through (e) applies and (2) that a grant of permanent custody is in the child’s best
interest. R.C. 2151.414(B)(1).” Id.{¶ 41} R.C. 2151.414(B)(1)(a) requires a finding that the child has not been
abandoned or orphaned, has not been in the custody of a public children services agency
or a private child placing agency for at least 12 months of a consecutive 22-month period,
and cannot be placed with either parent within a reasonable time or should not be placed
with either parent; subsection (b) requires a finding that the child is abandoned;
subsection (c) requires a finding that the child is orphaned and there are no relatives who
are able to take permanent custody; subsection (d) requires a finding that the child has
been in the temporary custody of a public children services agency or a private child
placing agency for at least 12 months of a consecutive 22-month period; and subsection
(e) requires a finding that the child or another child the parent had custody of has been
adjudicated abused, neglected, or dependent on three separate occasions.
{¶ 42} Here, the juvenile court determined that R.C. 2151.414(B)(1)(a) applies to
the facts of this case. Therefore, the court was required to consider whether granting
permanent custody to the agency is in the child’s best interest and whether any of the
factors enumerated in R.C. 2151.414(E) are present that would indicate that the child
cannot be placed with either parent within a reasonable time or should not be placed with
either parent. In re B.K., 6th Dist. Lucas No. L-10-1053, 2010-Ohio-3329, ¶ 42-43. On
appeal, mother and father challenge the juvenile court’s findings with respect to Section
(E), i.e., that the children should not, and could not within a reasonable time, be placed
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with either parent. They do not challenge the trial court’s finding that a grant of
permanent custody to the department was in the children’s best interest. Therefore, we
confine this decision to the juvenile court’s determination that, under R.C.
2151.414(B)(1)(a), the children should not, and could not within a reasonable time, be
placed with either parent. Accord In re A.M. at ¶ 18.
{¶ 43} We review a trial court’s determination in a permanent custody case under
a manifest-weight-of-the-evidence standard. In re P.W., 6th Dist. Lucas No. L-12-1060,
2012-Ohio-3556, ¶ 20. In doing so, we must weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether the trier of
fact clearly lost its way in resolving evidentiary conflicts so as to create such a manifest
miscarriage of justice that the decision must be reversed. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). But, while we review the evidence and consider
the witnesses’ credibility, we must be mindful that the juvenile court, as the trier of fact,
is in the best position to weigh evidence and evaluate testimony. In re. P.W. at ¶ 20. Its
discretion in determining whether an order of permanent custody is in the best interest of
a child “should be accorded the utmost respect, given the nature of the proceeding and the
impact the court’s determination will have on the lives of the parties concerned.”
(Internal citations omitted.) In re C.P., 10th Dist. Franklin No. 08AP-1128, 2009-Ohio-
2760, ¶ 10.
{¶ 44} In its decision, because the court found that R.C. 2151.414(B)(1)(a)
applies, it examined the R.C. 2151.414(E) factors. A court need only find one (E) factor
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present to support a finding that the child cannot be placed with either parent within a
reasonable time or should not be placed with either parent. In re C.F. at ¶ 50, citing In re
William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996), syllabus.
{¶ 45} The court found that Sections (E)(1), (2) and (4) applied to both mother and
father. It found that Section (E)(10) also applied as to father. Those sections provide,
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the
child’s parents, the court shall enter a finding that the child cannot be
placed with either parent within a reasonable time or should not be placed
with either parent:
(1) Following the placement of the child outside the child’s home
and notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially caused the
child to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
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placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate permanent
home for the child at the present time and, as anticipated, within one year
after the court holds the hearing pursuant to division (A) of this section or
for the purposes of division (A)(4) of section 2151.353 of the Revised
Code;
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child;
***
(10) The parent has abandoned the child.
20.
{¶ 46} All of the court’s findings under R.C. 2151.414 must be by clear and
convincing evidence. “Clear and convincing evidence” is evidence sufficient for the trier
of fact to form a firm conviction or belief that the essential statutory elements for a
termination of parental rights have been established. Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph three of the syllabus; In re Tashayla S., 6th Dist.
Lucas No. L-03-1253, 2004-Ohio-896, ¶ 14.
A. The evidence supports the trial court’s finding that the children could not be
returned to the mother’s care within a reasonable time or should not be returned.
{¶ 47} As to Section (E)(1), the court found that “despite substantially completing
case plan services, Mother lacks the ability or has failed to make significant progress in
the services to return the children to her and to keep the children safe and heathy.” Based
upon her testimony at trial, the court concluded that mother “lacks insight in the
circumstances she and her children were living in” including her use of locks in the
home, “shooting mice with a BB gun in the presence of children” and claiming there
were “no bruises on the children despite being presented with evidence to the contrary.”
{¶ 48} In appellants’ first assignment of error, mother does not challenge any
particular Section (E) finding by the court. Instead, she claims that, because parents are
allowed “up to [24 months] to complete case plan services, * * * this court should find
that approximately six months remained available” to her—as of the time of trial—to
complete her case plan. And, she claims that “arguably * * * additional time would be
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helpful to her.” We interpret mother’s claim as a challenge to the trial court’s finding
under Section (E)(1). And, we find it not well-taken.
{¶ 49} Mother’s testimony at trial firmly established that, despite more than 18
months of services, she remained steadfast in her unwillingness or inability to accept any
responsibility for the conditions that led to the children’s removal. If anything, mother
doubled down, insisting that the agency’s concerns were unfounded. When asked
whether her “thinking” on the use of padlocks had changed in light of parenting classes,
mother answered, “Yes. I have alarms on all the doors now. No more locks. Just
alarms.” Mother rationalized the use of shooting “a little BB gun” in the house while the
children were “sleeping,” only then to announce that she had “legally” taught her “6 year
old” to operate a “gun.”
{¶ 50} Mother also appears to challenge the trial court’s finding—that the children
could not and should not be returned to her mother’s care within a reasonable time—by
pointing to “evidence” that she “wasn’t questioned” about sexual abuse and was
“unaware” of stepbrother’s beating. First, evidence was presented from multiple sources
that mother witnessed and even encouraged stepbrother’s beating. But, what speaks
volumes to this court is the total absence that mother ever, in the 18 months after the
children were removed, acknowledged the harm that was done to the children, if only
physically and emotionally, irrespective of the cause. At the time of their removal, the
children were described as dirty, very skinny, bruised, traumatized, mute, aggressive,
zombie-like, and profane. As expressed by the GAL, mother simply lacks, then and now,
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any understanding of “what kind of shape the kids [were] in,” and “if [mother] doesn’t
understand it, she can’t do anything about it.” A parent “is afforded a reasonable, not an
indefinite, period of time to remedy the conditions causing the children’s removal.” In re
A.L.A. and A.S.A., 11th Dist. Lake Nos. 2011-L-020 and 2011-L-021, 2011-Ohio-3124,
¶ 108. (Finding that mother was not entitled to more than the 18 months that had elapsed
since the case plan in that case was filed.) We see no evidence to support mother’s claim
that an additional six months of services would make any difference in her ability to
provide a safe and loving home to these children. In sum, the record contains clear and
convincing evidence to support the trial court’s finding under Section (E)(1) that, despite
mother’s substantial completion of her case plan, she failed continuously and
substantially to remedy the conditions that caused the children’s removal.
{¶ 51} As to Section (E)(2), the court found that mother has been in mental health
counseling for a “substantial period of time yet has made very little progress.” The court
noted that “many of the actions [mother] took towards the children [that were considered
inappropriate] were taken towards her by her own mother yet she fails to acknowledge
the gravity of these actions.” The court concluded that, “Mother lacks insight into how
her past trauma has affected the way she parents toward the children.”
{¶ 52} Mother does not address the trial court’s finding under Section (E)(2), nor
does she address the trial court’s specific conclusion that “her past trauma” affects the
way she parents. Based upon our review of the record, mother sustained terrible abuse
herself as a young person, and perhaps understandably, “hates” her mother for it. But,
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the record contains no evidence to suggest that mother’s treatment for trauma has had any
measurable impact on her psychological well-being. Merely completing the coursework
and professing that she does not “let that stuff bother her” does not cast doubt on the trial
court’s finding that mother remains severely impacted by unresolved trauma.
{¶ 53} Finally, as to Section (E)(4), the court found that mother “failed to
demonstrate an ability to maintain control of the children during visits. Mother’s
testimony regarding visits was contrary to others who have observed the visits.”
{¶ 54} The evidence at trial established that mother attended “99%” of the visits.
On appeal, mother asserts that her attendance and her “diligence” in following
recommendations, “particularly [in] regards [to] bringing food for the visits” demonstrate
her ability to care for the children.
{¶ 55} Actually, the record indicates that mother was asked to discontinue
bringing food to the visits because it was so disruptive. The GAL testified extensively
about the visits between mother and the children. In short, they were “so bad” that the
GAL requested that they be suspended. Many factors influenced the GAL, including the
fact that before, during and after the visits, the “kids bodies rebel[led].” She elaborated
that there was “just so much peeing and pooping going on and throwing up, * * * in
reaction” to visiting with mother. Also, before entering the visitation room, the kids
would “cling[] to all sorts of personnel, whether it was security guards or foster mom or
foster dad or visitation people.” Once inside the visitation room, the girls “lost control”
by climbing onto furniture, making a mess with food, and repeatedly running into the
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hallway and eluding the security guards who ran after them. While C.W. would “behave
himself and cooperate,” mom “basically ignored” him, while the girls “rais[ed] havoc”
and “evolved into this wildness.” The GAL described mom as “very rigid” who “would
lecture” the girls, but “nothing seemed to work.” Of particular relevance to the trial
court’s finding under Section (E)(4), the GAL testified that the girls would typically use
the bathroom “three or four times” per visit, and initially, mother was allowed to take
them. However, after a report that she had “hurt their vagina” while in the LCCS
bathroom, the agency prohibited mother from taking them anymore. After another visit
and report, “the kids were no longer allowed to sit on mom’s lap.”
{¶ 56} In sum, we find that competent, credible evidence supports the trial court’s
finding under R.C. 2151.414(E)(1), (2) and (4) as to mother. Therefore, we find that the
trial court did not err in finding that the children could not be placed with mother within a
reasonable time or should not be placed with her. Accordingly, the first assignment of
error is found not well-taken.
B. The evidence supports the trial court’s finding that the children could not be
returned to the father’s care within a reasonable time or should not be returned.
{¶ 57} Here, the juvenile court found that father “has abandoned the children in
that he has not visited with the children in over [18] months nor has he asked to visit with
them” under R.C. 2151.414(E)(10).
{¶ 58} Under R.C. 2151.011(C), “a child shall be presumed abandoned when the
parents of the child have failed to visit or maintain contact with the child for more than
25.
ninety days, regardless of whether the parents resume contact with the child after that
period of ninety days.” Here, father admits that he only attended two or three visits at
LCCS, the last of which occurred in October of 2019. Thus, he had no contact with the
children for at least seven months prior to the permanent custody hearing in this case.
During some of that time, at least, he was back in Ohio but failed to communicate with
the caseworker or GAL. Most notably, when he did finally contact the caseworker, he
did not ask to visit with the children. We find that clear and convincing evidence
supports the juvenile court’s determination that father abandoned the children under R.C.
2151.414(E)(10). Accord In re. M.G., 6th Dist. Lucas Nos. L-20-1114, L-20-1115, 2020-
Ohio-5288, ¶ 41.
{¶ 59} The trial court also found that the children could not or should not be
placed with father under Sections (E)(1), (2), and (4), and father does not challenge the
court’s findings under those sections. To the contrary, he specifically admits that “he did
not engage in a parenting program” and lacks “stable housing,” which supports the trial
court’s finding, under Section (E)(1), i.e., that father “has failed to complete case plan
services and has stated to more than one person that he is not in a position to take custody
of the children.” Also, and as discussed above, he agrees that he “only visited with the
children three times and has not visited with them since October of 2019” which supports
the trial court finding under Section (E)(4). And finally, while he maintains that he
“engaged” in mental health treatment at Harbor, he does not challenge the trial court’s
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finding under Section (E)(2) that, “[a]lthough father has engaged in mental health
counseling, he has been sporadic in his compliance.”
{¶ 60} The only argument raised by father is that—like mother—he is entitled to
an additional six months to “re-establish visits” and complete a parenting class. Father’s
aspirational claim falls flat, in light of the record evidence establishing that he never
asked to see his children, lost contact with the agency, did not testify at the hearing, and
admitted that he was not in a position to care for the children. For these reasons, we find
the second assignment of error not well-taken.
{¶ 61} We find that clear and convincing evidence supports the juvenile court’s
determination under R.C. 2151.414(B)(1)(a) that C.W., H.W., and F.W. could not be
returned to mother or father within a reasonable time or should not be returned to mother
or father. Therefore, we find that the juvenile court’s award of permanent custody to
LCCS in this case was not against the manifest weight of the evidence. Accordingly, the
appellants’ assignments of error are not well-taken.
IV. Conclusion
{¶ 62} For the reasons expressed above, we find that the trial court’s decision was
supported by clear and convincing evidence and was not against the manifest weight of
the evidence. We find that the appellants’ assignments of error are without merit.
Therefore, the July 15, 2020 judgment of the Lucas County Court of Common Pleas,
27.
Juvenile Division, is affirmed. Pursuant to App.R. 24, costs of this appeal are assessed to
mother and father, to be shared equally.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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/.
28.