In re S.W.
S. POWELL, P.J.
{¶ 1} Appellants, the biological mother and father of S.W. and Sh.W., appeal the decision of the Preble County Court of Common Pleas, Juvenile Division, granting permanent custody of S.W. and Sh.W. to appellee, Preble County Job and Family Services, Children Services Division (“PCJFS“). For the reasons outlined below, we affirm.
{¶ 2} Mother, who was born in 1993, and Father, who was born in 1995, are the biological parents of S.W., a boy, born on January 31, 2020, and Sh.W., another boy, born on February 4, 2021. Mother and Father, who are themselves a married couple, are also the biological parents of three other children, K.W., D.S., and W.W. There is no dispute that Mother and Father lost custody of K.W., D.S., and W.W. either prior to this case being initiated or during the pendency of this case.1 There is also no dispute that Mother is the biological mother of two additional children of whom she lost custody prior to the initiation of this case and who are now in the legal custody of their biological father(s).
Facts and Procedural History
{¶ 3} On June 17, 2021, PCJFS filed a complaint alleging S.W. and Sh.W. were dependent children.2 To support its complaint, PCJFS alleged that it had gone to Mother and Father‘s home in the summer of 2020 to investigate a report that Mother had given birth to her and Father‘s fourth child, S.W. PCJFS alleged that upon contacting Mother at her and Father‘s home that she denied giving birth to S.W. and instead claimed that “she babysits for a relative.” PCJFS alleged that Mother made these claims despite there being a full baby bottle sitting in plain view on the couch and a crib located in one of the home‘s bedrooms. PCJFS alleged that Mother then admitted that she had given birth to S.W., but claimed that she had signed custody of the child over to S.W.‘s maternal grandmother because she could not properly care for him. S.W.‘s maternal grandmother denied Mother‘s claim and instead told PCJFS that she had “only seen [S.W.] for about 30 minutes his whole
{¶ 4} PCJFS alleged that Mother then claimed that S.W. was actually not at home at that time. PCJFS also alleged that Mother refused to disclose where S.W. was or who S.W. may have been with. PCJFS alleged that the police were then called to the home to look for S.W. S.W., however, was nowhere to be found. PCJFS alleged that this was just one of the “multiple attempts” it undertook to locate S.W. by making unannounced stops at Mother and Father‘s home and knocking on the door. However, despite multiple attempts to locate S.W. at the home, PCJFS alleged that “no one answered the door and no contact was made [with] the family” even though there were “dogs in the home and an air conditioner running.” The record indicates that S.W. was subsequently located by police a few weeks later and placed into PCJFS’ temporary custody following an emergency shelter care hearing.
{¶ 5} Continuing with its complaint, PCJFS alleged that several months later, in the winter of 2021, it received a report that Mother had given birth to her and Father‘s fifth child, Sh.W. There is no dispute that while she was pregnant with Sh.W. Mother tested positive for methamphetamine. There is also no dispute that Mother admitted to using drugs while pregnant with Sh.W. and that Father was not present for Sh.W.‘s birth because he was serving time in prison. Similar to S.W., the record indicates Sh.W. was then placed into PCJFS’ temporary custody following an emergency shelter care hearing. This occurred prior to Sh.W. ever leaving the hospital. PCJFS then concluded its complaint by summarily alleging Mother and Father had not remedied the concerns that led to either S.W.‘s or Sh.W.‘s removal from their custody, which included, most notably, their use of illegal drugs. PCJFS then requested, based upon the totality of the circumstances, it be awarded temporary custody of S.W. and Sh.W. to ensure the children‘s health, welfare, and safety.
{¶ 7} On October 15, 2021, Mother and Father appeared for their weekly supervised visitation time with S.W. and Sh.W. The record indicates that this this was the last time Mother and Father had in-person contact with either S.W. or Sh.W. despite the opportunity for additional visitation.
{¶ 8} On January 14, 2022, PCJFS filed a motion for permanent custody of both children. The following month, on February 9, 2022, the juvenile court held an initial pretrial hearing on PCJFS’ permanent custody motion. Both Mother and Father personally appeared at this hearing with counsel and were provided with notice that a final permanent custody hearing had been scheduled for May 3, 2022. The juvenile court held another
{¶ 9} On May 3, 2022, the juvenile court held the previously scheduled final permanent custody hearing. Neither Mother nor Father appeared for this hearing. Given their client‘s failure to appear, both Mother‘s and Father‘s counsel moved for a continuance. The juvenile court denied both motions then heard testimony and took evidence from five witnesses in support of PCJFS’ motion for permanent custody. This included testimony from both S.W.‘s and Sh.W.‘s stay-at-home foster mothers, the special advocate whom the juvenile court had appointed for S.W. and Sh.W., and the PCJFS caseworker assigned to S.W.‘s and Sh.W.‘s case.5 As part of this testimony, the caseworker testified regarding PCJFS’ ongoing concerns regarding Mother and Father‘s reunification with the children as follows:
A significant lack of bond, especially with Sh.W., who has been in [his foster home] since he was released from the hospital, less than 10 visits. [S.W.] has been in our care since he was six months old, and again, he has had more virtual visits, so he‘s heard mother‘s voice, but at this point, it‘s been reported that he‘s not demonstrating [that] significant of a bond anymore. * * * [T]he fact that they haven‘t attended any in person visits or initiated any contact with me to assist with moving forward with increased visits in a more natural setting where I could get the appropriate service providers in to assist with their parenting practices in building that bond again, the lack of commitment towards prioritizing their children‘s needs and putting their needs – the children‘s needs before their own.
{¶ 10} On August 1, 2022, the juvenile court issued a decision granting permanent custody of both S.W. and Sh.W. to PCJFS. In so holding, the juvenile court determined that
[n]otwithstanding reasonable case planning and diligent efforts by [PCJFS], [Mother] and [Father] have failed continuously and repeatedly to substantially remedy the conditions which caused the children to be removed. They were given case plans and referrals for services and have not utilized the services and resources that were made available to them for the purpose of changing parental conduct to allow them to begin performing parental duties.
{¶ 11} The juvenile court also found that, in addition to “financial concerns” and “marginal living arrangements” since PCJFS first became involved with Mother and Father several years earlier:
[i]llegal drug use has either been the main reason for or connected to these children‘s removals and with the parents’ other children being placed in the agency‘s permanent custody. The involvement with the [PCJFS] dates back [several years] and the parents have not cooperated with [either of the two county agencies where Mother and Father have lived during the pendency of this case] or provided proof of employment despite claiming to have employment and it being the reason visits had to be moved.
{¶ 12} The juvenile court further found:
Both [S.W. and Sh.W.] have suffered various (and some serious) delays, apparently due to parental drug use. [Mother and Father] have been uncommitted to visiting the children (despite it being moved to accommodate the parents’ schedule) and neither have made treatment a priority despite having five (5) children removed and being involved with [PCJFS].
{¶ 13} This was in addition to the juvenile court finding:
It does not appear that either [Mother or Father] gave the entire picture when seeking the limited services they sought and/or they minimized the problems. Drug screen requests were ignored and home visits were made impossible by [Mother and Father]. It appears that [Mother and Father] even lied about their identities to authorities and hid inside their home on one
occasion based upon [S.W.‘s and Sh.W.‘s paternal grandfather] saying they were inside.
{¶ 14} The juvenile court also determined that it was in S.W.‘s and Sh.W.‘s best interest to grant permanent custody of the children to PCJFS. The juvenile court reached this decision upon finding the children were doing well and having all their regular and special needs being met in their foster homes with their respective foster families. The juvenile court further found that both S.W. and Sh.W. were “very bonded” to their foster families and “enjoy spending time with each other and with their biological siblings,” one of whom was “previously adopted by [Sh.W.‘s] foster parents and the other two in the agency‘s permanent custody awaiting adoption * * *.” The juvenile court additionally found that both children‘s current foster homes were essentially, if not literally, the only homes that S.W. and Sh.W. had known given when they were removed from Mother‘s and Father‘s custody and care. This was in addition to the juvenile court finding:
[S.W. and Sh.W.] need stability and permanency that only permanent custody will provide. The children have special needs that the parents may have at least partially caused. [Mother and Father] have not addressed their actions or inactions that are suspect and do not appear to be equipped to parent the children. The current foster families who wish to become adoptive families have discovered and met the children‘s basic and special needs (which has not been easy) and the children are stable, happy and provided for now and deserve to have that continue.
Mother‘s and Father‘s Appeal
{¶ 15} Mother and Father now appeal the juvenile court‘s decision granting permanent custody of S.W. and Sh.W. to PCJFS, collectively raising three assignments of error for review.
Permanent Custody Standard of Review
{¶ 16} Before a natural parent‘s constitutionally protected liberty interest in the care
{¶ 17} In determining whether a juvenile court‘s decision is against the manifest weight of the evidence, an appellate court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.‘” In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. “In weighing the evidence, there is a presumption in favor of the findings made by the finder of fact and evidence susceptible to more than one construction will be construed to sustain the verdict and judgment.” In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15. “We are especially mindful of this in permanent custody cases.” In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-1000, ¶ 26.
{¶ 18}
{¶ 19} The juvenile court is required under
Father‘s Single Assignment of Error:
{¶ 20} PERMANENT CUSTODY OF THE MINOR CHILD[REN] IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶ 21} In his single assignment of error, Father argues the juvenile court erred by granting permanent custody of S.W. and Sh.W. to PCJFS. To support this argument, Father raises three issues for this court‘s consideration. We separately address each those three issues below.
Father‘s First Issue Presented for Review
{¶ 22} In his first issue presented for review, Father argues the juvenile court erred by failing to set forth sufficient findings of fact within its permanent custody decision as required by
A court that is required to make a determination as described in division (A)(1) or (2) of this section shall issue written findings of fact setting forth the reasons supporting its determination. If the court makes a written determination under division (A)(1) of this section, it shall briefly describe in the findings of fact the relevant services provided by the agency to the family of the child and why those services did not prevent the removal of the child from the child‘s home or enable the child to return safely home.
{¶ 23} Contrary to Father‘s claim, the requirement set forth in
{¶ 25} These findings are in stark contrast to the juvenile court‘s other best-interest findings made in support of PCJFS’ permanent custody motion. This includes, for instance, the juvenile court‘s finding S.W. and Sh.W. were doing well and “have all of their regular and special needs met in their respective foster homes,” one of which included an older sibling of S.W. and Sh.W. of whom PCJFS had already obtained permanent custody. This also includes the juvenile court finding S.W. and Sh.W. were “very bonded” to their foster families and that the children‘s respective foster homes were practically, if not literally, the
The children need stability and permanency that only permanent custody will provide. The children have special needs that the parents may have at least partially caused. The parents have not addressed their actions or inactions that are suspect and do not appear equipped to parent the children. The current foster families who wish to become adoptive families have discovered and met the children‘s basic and special needs (which has not been easy) and the children are stable, happy and provided for now and deserve to have that continue.
{¶ 26} “The decision to terminate a parent‘s parental rights requires serious consideration and should not be taken lightly.” In re L.H., 1st Dist. Hamilton No. C-220161, 2022-Ohio-2755, ¶ 53. This is because, in Ohio, the permanent termination of one‘s parental rights is likened to the family-law equivalent of the death penalty. In re R.K., 152 Ohio St.3d 316, 2018-Ohio-23, ¶ 1, citing In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, ¶ 10; and In re Hayes, 79 Ohio St.3d 46, 48 (1997). However, after a thorough review of the record, we find the juvenile court‘s decision to grant permanent custody of S.W. and Sh.W. to PCJFS is supported by sufficient evidence and not against the manifest weight of the evidence. The juvenile court‘s decision was instead supported by the clear and convincing evidence presented at the final permanent custody hearing.
{¶ 27} In reaching this decision, we note the following statement set forth within the children‘s court appointed special advocate‘s final report submitted to the juvenile court:
[Mother] and [Father] have demonstrated their lack of ability to follow through with the care required by these children. [S.W.] and [Sh.W.] are currently receiving excellent care in their foster homes. The bond between the boys and their foster families is very strong. * * * I believe it would be a huge mistake with lifelong consequences if these children were removed from these homes. They are in homes that meet their basic, safety, and special needs, along with being provided a very loving and stable family environment.
Father‘s Second Issue Presented for Review
{¶ 29} In his second issue presented for review, Father argues the juvenile court erred by granting permanent custody of S.W. and Sh.W. to PCJFS because there was no “good faith effort made at reunification” given that the children‘s court appointed special advocate did not “adequately investigate the case” and “no diligence was exercised” in investigating his and Mother‘s living situation. Father blames these supposed failures on PCJFS’ prior involvement with him and Mother‘s three older children, K.W., D.S., and W.W., as well as the multitude of issues that arose during the COVID-19 pandemic. The record
Father‘s Third Issue Presented for Review
{¶ 30} In his third issue presented for review, Father argues the juvenile court erred by denying his counsel‘s motion to continue the final permanent custody hearing when he failed to personally appear for that hearing. Father argues that decision violated his right to due process. However, as the record indicates, the juvenile court gave Father approximately three months’ notice of when and where that hearing was to take place. The record also indicates that the juvenile court denied counsel‘s motion upon finding it did not believe Father would show if the matter was continued to a later date, and that there was likely no better chance that Father would appear if the hearing was continued to the next week, the next month, or even the next year. We find no error in the juvenile court‘s decision. We also find no merit to Father‘s claim that denying his counsel‘s motion to continue violated his right to due process. Father, although having received more than enough notice of when and where that hearing would take place, chose not to appear. Father made this choice of his own volition and not because of anything the juvenile court may or may not have done. Therefore, finding no merit to any of the arguments raised by Father herein, Father‘s third issue likewise lacks merit.
{¶ 31} For the reasons outlined above, and finding no merit to any of the three issues raised by Father, Father‘s single assignment of error lacks merit and is overruled.
Mother‘s Assignment of Error No. 1:
{¶ 32} THE AGENCY DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THERE WAS AN INCAPACITY ON THE PART OF [MOTHER] TO PROVIDE ADEQUATE PARENTAL CARE.
{¶ 33} In her first assignment of error, Mother argues the juvenile court erred by granting permanent custody of S.W. and Sh.W. to PCJFS. To support this argument, Mother claims the record does not contain clear and convincing evidence that she lacked the capacity to provide adequate parental care for the children. Mother‘s argument, although not particularly clear, is essentially a challenge to the juvenile court‘s decision finding neither S.W. nor Sh.W. could be placed with her and Father within a reasonable period of time or should not be placed with her and Father under
{¶ 34} The second part of the two-part permanent custody test notes that an award of permanent custody can only be had where the juvenile court finds one of the circumstances set forth in
{¶ 35} The juvenile court reached this decision upon finding that, notwithstanding reasonable case planning and diligent efforts by PCJFS, Mother and Father had “failed continuously and repeatedly to substantially remedy the conditions which caused the children to be removed.” The juvenile court also found that, in addition to “financial concerns” and “marginal living arrangements” since PCJFS first became involved with Mother and Father several years prior regarding their three older children, K.W., D.S., and W.W., “[i]llegal drug use has either been the main reason for or connected to these children‘s removals and with the parents’ other children being placed in the agency‘s permanent custody.”
{¶ 36} The juvenile court further found that both S.W. and Sh.W. had “suffered various (and some serious) delays, apparently due to parental drug use,” that Mother and Father had been “uncommitted to visiting the children (despite visitation being moved to accommodate the parents’ schedule),” and that neither Mother nor Father had “made treatment a priority despite having five (5) children removed and being involved with the Agency.” This was in addition to the juvenile court finding neither Mother nor Father were completely truthful when seeking the limited services that they did or, at the very least, that Mother and Father minimized the problems that they faced. Specifically, as the juvenile court found:
It does not appear that either gave the entire picture when seeking the limited services they sought and/or they minimized the problems. Drug screen requests were ignored and home visits were made impossible by the parents. It appears that they even lied about their identities to authorities and hid inside their home on one occasion based upon the paternal grandfather
saying they were inside.
{¶ 37} We find no error in the juvenile court‘s decision. This is because, as a simple review of the record reveals, such findings are fully supported by the record. The juvenile court‘s decision is also not against the manifest weight of the evidence. This is particularly true in this case when considering neither Mother or Father appeared at the final permanent custody hearing to provide evidence contrary to the testimony and evidence offered by the five witnesses who testified in support of PCJFS’ permanent custody motion. Therefore, because we can find no error in the juvenile court‘s decision finding S.W. and Sh.W. could not be placed with Mother and Father within a reasonable period of time or should be placed with Mother and Father under
Mother‘s Assignment of Error No. 2:
{¶ 38} THE TRIAL COURT‘S AWARDING OF CUSTODY OF S.W. AND SH.W. TO THE AGENCY IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶ 39} In her second assignment of error, Mother argues the juvenile court‘s decision finding it was in S.W.‘s and Sh.W.‘s best interest to grant permanent custody to PCJFS was not supported by clear and convincing evidence. However, given our resolution of Father‘s single assignment of error set forth above, Mother‘s argument challenging the juvenile court‘s best interest determination also lacks merit. In so holding, we reiterate our finding that the juvenile court‘s decision to grant permanent custody of S.W. and Sh.W. to PCJFS was supported by sufficient evidence and was not otherwise against the manifest weight of the evidence. Therefore, because we can find no error in the juvenile court‘s decision granting permanent custody of S.W. and Sh.W. to PCJFS, Mother‘s second assignment of error also lacks merit and is overruled.
{¶ 40} For the reasons outlined above, and finding no merit to any of the arguments raised by either Mother or Father herein, Mother‘s and Father‘s challenge to the juvenile court‘s decision granting permanent custody of S.W. and Sh.W. to PCJFS is overruled.
{¶ 41} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.