In re A.W.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas Varney, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
ProKids, Inc., and Paul Hunt, for the Guardian ad Litem.
{¶1} Appellant mother appeals the judgment of the Hamilton County Juvenile Court granting permanent custody of her child, A.W., to the Hamilton County Department of Job and Family Services (“HCJFS“). For the following reasons, we affirm the judgment of the juvenile court.
I. Factual and Procedural History
{¶2} Mother has eight children, all of whom have been the subject of this juvenile court case at one point and none of which are in her care. Only one of her children, A.W., is the subject of this appeal.1 Mother‘s oldest child was removed from her care in 2014 due to allegations of abuse which included mother beating the child with her hands, extension cords, boards, and other household objects, and holding a knife to his throat. In 2015, HCJFS sought temporary custody of mother‘s six other children due in part to continued physical fights between mother and her second oldest child, mother telling the child to hide the “whoppings” and to hide any injuries under her clothes, and mother admitting to physical discipline of the children. After adjudication, the child involved in the physical fights with mother was placed in the temporary custody of HCJFS while mother‘s five other children remained in her care under protective supervision.
{¶3} The protective supervision continued until HCJFS filed a complaint for temporary custody of those children in July 2016, asserting that mother had physically abusеd her third oldest child by whipping him with a cable wire, choking him, pushing him against a wall, and hitting him in the face approximately six times. The complaint also asserted that the child had visible injuries to his lip and a bump on his forehead, and alleged that mother admitted to hitting the child with a belt and said that she believed she had the right to parent however she wanted to.
{¶5} On January 20, 2017, HCJFS filed a third amended complaint and another motion for interim custody of A.W. The complaint asserted that HCJFS had received a call from a someone who was facilitating a visit at mother‘s home and who indicated that mother was exhibiting behavior consistent with being under the influence of drugs or alcohol. Mother continued to exhibit this behavior when HCJFS arrived, so HCJFS took emergency interim custody of A.W. via a telephone order on January 19, 2017. All parties subsequently agreed to interim custody of A.W. to HCJFS.
{¶6} HCJFS filed a fourth amended complaint regarding the six youngest children—including A.W.—in Marсh 2017 and a fifth amended complaint regarding the same children on April 18, 2017, asserting that the children were abused and dependent. Of relevance, the fifth amended complaint added an allegation that A.W. was evaluated at CCHMC and found to have a partial hemorrhagic collection bleeding in the brain, as well as retinal hemorrhages. Doctors were able to determine that said abusive injury occurred during the first month of the child‘s life, between 12/14/16 and 1/14/17. The child was in Mother‘s
{¶7} An entry from the juvenile court on May 25, 2017, indicated that A.W. was stable in his foster home but had to undergo surgery on his head “due to fluid on his brain resulting from shaking of the child.” The entry also indicated that the issue was being investigated, and that the foster parents had been cleared while mother was still under investigation.
{¶8} After two additional amended complaints, mother‘s six youngest children—including A.W.—were adjudicated dependent, and A.W. and mother‘s third oldest child were adjudicated abused, on September 13, 2017. Threе children were placed in the legal custody of a relative, and three children—including A.W.—were placed in the temporary custody of HCJFS. HCJFS ultimately filed a motion to modify temporary custody of all three children in its care to permanent custody on May 24, 2018. The juvenile court granted permanent custody of the other two children to HCJFS on February 27, 2019.2 The motion for permanent custody of A.W. was continued due to a pending objection on a case-plan entry regarding placement of A.W. HCJFS withdrеw its initial motion for permanent custody of A.W. on April 22, 2019, and filed a new motion for permanent custody of A.W. that same day.
{¶9} The first hearing on the motion for permanent custody of A.W. was held before a magistrate on June 24, 2019. Partial testimony was presented of a childhood friend of mother‘s, who was providing kinship care for A.W. at the time. The friend testified that she did not want mother to visit with A.W. at her home because mother created an “unsafe environment.” She claimed that mother would come to her house
{¶10} The next hearing on the motion was held before the magistrate on January 3, 2020. Mother‘s probation officer testified that mother was on “probation” for “the illegal conveyance into a government facility of illegal contraband.” He said that mother was in compliance with the terms of her “probation” and that all the recent drug tests he administered had been negative. When asked if he had any problems working with mother, he described only one issue where mother was discharged from her substance-abuse treatment at First Step Home due to her “reaction” to a positive urine screen. He said that mother had to go to another treatment facility to get evaluated, but ultimately did complete her treatment.
{¶11} Melissa Garnett, a kinship care provider for A.W., testified about behavioral concerns regarding A.W. She described A.W.‘s behaviors as severe and indicated that his behaviors included hitting, kicking, punching, throwing things, and some tantrums. She said that A.W. had to be kept in an area away from other children, which was not healthy for A.W. Garnett also testified about her observations during visits that she facilitated between mother and A.W. She denied witnessing mother do anything inappropriate with A.W. and denied ever seeing mother yell, raise her voice, discipline A.W., or do anything of that nature. She said that mother would redirect A.W. by showing him different things, reading to him, and presenting different toys. She described the relationship between mother and A.W. as “a loving mom and son relationship.” However, she also denied that mother had A.W. under control during the visits and said that A.W. was “okay” so long as mother just let him do what he wanted. Additionally, when asked if she ever heard mother say that she felt that A.W. needed a “whooping,” she replied, “Well, yeah. Parents always talk about that, you
{¶12} Mother‘s chemical-dependency counselor testified that he had been working with mother for about a year. When asked what he and mother had been working on, he replied, “Mostly mental health issues, skills to learn how to cope with life.” He provided an example that mother had poor emotional regulation in the beginning but was now able to “release” those feelings. He expressed that mother had progressed very well with her treatment and he was proud of the growth that mother had exhibited. He said that mother was initially pessimistic and had a victim mentality but now was an “overcomer.” He denied ever seeing mother parent her children. When asked if they talked about the children during mother‘s treatment, he replied, “Enough.” He denied having any concern that mother would harm herself or others.
{¶13} Mother‘s anger-management therapist testified that mother had been in her anger-management group since July 2019. Mother‘s objectives were to be able to communicate in a healthy and effective way when angry or upset, to know how to deescalate, and to understand where the anger was coming from. She testified regarding each of mother‘s objectives and said that she was able to observe mother using these skills. She said that mother had attended 18 sessions, and expressed that she had seen progress from mother over that time. She opined that mother‘s
{¶14} Niesha Cooper, a caseworker from HCJFS, testified that she had been working on mother‘s case since 2015. She listed mother‘s case-plan requirements as completing a diagnostic assessment and following all recommendations, engaging in individual therapy and “med-somatic,” maintaining stable housing and income, demonstrating a behavioral change, parenting, visitation, and treatment. She agreed that mother made some progress toward a bеhavioral change but denied that the changes were sufficient to say that the case plan was “alleviated.” She described mother‘s behavior as very loud, verbally aggressive, very disrespectful, and possibly intimidating, depending on the person. She expressed that the agency wanted to know that mother learned from the services that she engaged in and would be able to utilize these services in everyday life. She explained that mother‘s engagement in services was never the issue. Instead, it was а matter of mother understanding what A.W.‘s needs were and how she would engage and handle a child with needs like A.W.‘s. She explained that A.W. had severe behavioral issues and issues with bonding. She said that A.W. had a lot of aggression to hurt and harm others, especially other children and dogs. She stated, “I‘m very fearful that he will be hurt out of a reaction of [sic] his behavior by someone else.”
{¶15} She explained mother‘s history of physical abuse toward her children who are defiant or disrespectful and expressed that she hаd not seen anything to indicate that mother‘s ability to handle A.W. would be any different moving forward. When asked if it was true that mother‘s issues were only regarding her older children, she replied, “And that‘s what we thought until we discovered that it was deeper than
{¶16} Mother testified that she was currently sober and had not had a drink since August 2018. She agreed thаt she was manipulative when she was in “early recovery,” and said that her drinking caused her to have low patience and low tolerance for any type of disrespect from her children. She described drinking as her “vacation” from her children. She testified that she was now doing well with her sobriety. Regarding A.W.‘s head injury, she denied recalling any incident that may have caused someone to think that A.W. was injured in her care. She also denied dropping, disciplining, or ever harming A.W., or that A.W. was ever harmed while under her care. Mother‘s testimony was ultimately cut short at the hearing due to timing issues. Mother‘s testimony was scheduled to be completed at the next hearing, which was originally scheduled for March 2020. After several continuances for various reasons, the next hearing was held on February 11, 2021. No record was presented to this court of what occurred at the hearing this day.3
{¶18} At the conclusion of the final hearing, the magistrate took the matter under advisement and scheduled the case for entry of a written decision. The magistrate ultimately granted permanent custody of A.W. to HCJFS on June 1, 2021. The magistrate found that A.W. had been in the permanent custody of HCJFS for more than 12 of the previous 22 months and found that permanent custody to HCJFS was in A.W.‘s best interest. Mother filed objections to the magistrate‘s decision on June 14, 2021. After a hearing on the objections, the juvenile court overruled the objections and adopted the decision of the magistrate on May 12, 2022. Mother timely filed a notice of appeal.
II. Law and Analysis
A. Standard of Review
{¶19} When reviewing a case involving the termination of parental rights, this court must look to the record and dеtermine if the juvenile court‘s decision was
{¶20} Our examination of the sufficiency of the evidenсe is a question of law which looks to adequacy of the evidence and asks whether some evidence exists on each element. Id. at ¶ 7, citing In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15. On the other hand, our examination of the weight of the evidence looks to the inclination of the greater amount of credible evidence to support one side rather than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Weight of the evidence is not a question of mathematics, but rather the effect of the evidence in inducing belief. Id., citing Thompkins. When reviewing the weight of the еvidence, this court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether—in resolving the conflicts in the evidence—the juvenile court “clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed.‘” In re P. & H. at ¶ 7, quoting In re A.B. at ¶ 16. In doing so, we must be mindful of the presumption in favor of the finder of fact. In re A.B. at ¶ 16, citing Eastley at ¶ 21.
B. Mother‘s Argument
C. The Best-Interest Determination was Supported by the Record
{¶22} In determining the best interest of a child at a hearing held pursuant to
{¶24} Because mother recently had her parental rights involuntarily terminated with respect to twо siblings of A.W., the burden was on her to show that she could provide a legally secure placement and adequate care for the health, welfare, and safety of A.W. See
{¶25} All parties acknowledge that mother completed most, if not all, of the required services under her сase plan. The issue disputed is whether completion of those services was successful in remedying the condition that caused A.W. to be removed from her care. See., e.g., In re C, 1st Dist. Hamilton Nos. C-200003 and C-200004, 2020-Ohio-4206, ¶ 28 (“[E]ven the substantial completion of a case plan does not, in and of itself, require that children be reunited with a parent who has failed to remedy the condition that led to the removal in the first place.“); In re K.G., 12th Dist. Clermont Nos. CA2020-08-047, CA2020-08-048 and CA2020-08-049, 2021-Ohio-1182, ¶ 53 (” ‘[T]he key concern is not whether the parent has successfully completed the case plan, but whether the parent has substantially remedied the concerns that caused the child‘s removal from the parent‘s custody.’ “).
{¶26} The trial court found that, while A.W. was initially removed from mother‘s care due to her intoxication during an in-home visit, he was subsequently diagnosed with a traumatic brain injury that he suffered while in mother‘s custody. The magistrate‘s decision—adopted by the trial court—accordingly recognized that the issues which caused A.W.‘s removal included alcoholism, mental-health concerns, and parenting issues. The magistrate acknowledged that mother had participated in case-plan services to address these issues but ultimately found that, while mother had shown some improvement, she had not shown a behavioral change sufficient to establish that she was able to successfully parent A.W.
{¶27} This is supported by the record. First, Garnett, who was A.W.‘s kinship care provider at the time, testified that she and mother had discussions about how A.W. just needed a “good whooping” to correct his behavior. Additionally, the caseworker from HCJFS testified that, while mother had shown some improvement, mother did not alleviate the concern regarding how mother would handle a defiant and disrespectful child. She said that mother had a history of being physically abusive toward her children who are defiant or disrespectful and expressed that A.W. had special needs due to his behavioral issues that mother had not shown she could handle. Further, the caseworker said that mother failed to acknowledge A.W.‘s needs in this
{¶28} Stated simply, mother had a history of inappropriately disciplining her childrеn who were defiant or disrespectful, which resulted in two recent involuntary terminations of her parental rights regarding two siblings of A.W. Because of these terminations, mother had the burden to show that she had remedied these concerns and was now able to provide a legally secure placement for A.W. This would include a showing that she now had the ability to parent a child safely and appropriately, no matter his or her behavior. The juvenile court found that mother failed to meet this burden and we cannot say that such a finding was not supported by the record as there is no evidence in the record before this court of any direct changes that mother made regarding her ability to parent or any evidence to support that mother now had the ability to appropriately manage a child like A.W. who had severe behavioral issues. “‘The law does not require the court to experiment with a child‘s welfare to see if the child will suffer great detriment or harm.‘” In re K.G., 12th Dist. Clermont Nos. CA2020-08-047, CA2020-08-048 and CA2020-08-049, 2021-Ohio-1182, at ¶ 57, quoting In re B.C., 12th Dist. Warren Nоs. CA2018-03-024 and CA2018-03-027, 2018-Ohio-2673, ¶ 30.
{¶29} Mother additionally argues that she could “at some point” prove her capability to parent under
{¶30} Mother further argues that the trial court‘s determination was based on speculation as mother‘s history was only regarding her older children and A.W. was still young. However, as recognized in the caseworker‘s testimony, the concern of physical abuse by mother was broadened upon the discovery of A.W.‘s head injury that he sustained while in mother‘s care as an infant. Therefore, the trial court‘s determination was not speculative as it was based on history directly applicable to A.W.
{¶31} Because mother failed to show that she could provide a legally secure placement for A.W. under
IV. Conclusion
{¶32} Having overruled the assignment of error, we affirm the judgment of the trial court.
Judgment affirmed.
Please note:
The court has recorded its own entry this date.