IN RE: T.K., D.W., C.W.
C.A. No. 28720
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
December 20, 2017
[Cite as In re T.K., 2017-Ohio-9135.]
HENSAL, Presiding Judge.
STATE OF OHIO, COUNTY OF SUMMIT. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO. CASE Nos. DN 16-02-132, DN 16-02-133, DN 16-02-134.
Dated: December 20, 2017
HENSAL, Presiding Judge.
{1} Appellant Mother appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights to her minor children and placed the children in the permanent custody of Summit County Children Services Board (“CSB“). This Court affirms.
I.
{2} Mother is the biological mother of T.K. (d.o.b. 11/17/05), D.W. (d.o.b. 2/9/09), and C.W. (d.o.b. 9/6/10). Father was the biological father of D.W. and C.W. Paternity was never established for T.K. Mother and Father were married, but later divorced. Either as a result of the parents’ divorce or a dependency, neglect, abuse case in Stark County involving the children, Father became the legal custodian of all three children. Father remarried and the three children lived with him, Stepmother, and her two children. In November 2015, Father was
{3} Both Mother and Father waived their rights to an adjudicatory hearing, and the children were adjudicated dependent. After the dispositional hearing, the children were placed in the temporary custody of CSB, and the agency‘s proposed case plan was adopted as the order of the court. The children were maintained in the temporary custody of the agency after each review hearing. Almost a year after the children were removed from Father‘s custody, CSB filed a motion for permanent custody. As grounds, the agency alleged that the children could not be placed with either parent within a reasonable time or should not be placed with either parent, that the children had been abandoned by Mother, and that an award of permanent custody was in the children‘s best interest. Approximately three weeks after CSB filed its motion, Father died.
{4} On the day of the scheduled permanent custody hearing, Mother failed to appear. Mother‘s attorney moved for a continuance based on Mother‘s failure to maintain contact with her, as well as newly discovered information. The juvenile court continued the permanent custody hearing. In the interim, Mother moved for legal custody, or, in the alternative, a six-month extension of temporary custody. On the second scheduled date for the permanent custody hearing, Mother again failed to appear. However, Mother‘s counsel asserted that she had been in “consistent contact” with Mother and was ready to represent her at the hearing.
{5} After the conclusion of the permanent custody hearing, the juvenile court granted CSB‘s motion for permanent custody and terminated Mother‘s parental rights to T.K., D.W., and C.W. Mother filed a timely appeal in which she raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT‘S DECISION GRANTING THE MOTION FOR PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{6} Mother argues that the juvenile court‘s award of permanent custody was against the manifest weight of the evidence. This Court disagrees.
{7} In considering whether the juvenile court‘s judgment is against the manifest weight of the evidence, this 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 [hearing] ordered.” (Internal quotations and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). When weighing the evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{8} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a consecutive 22-month period; the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with either parent, based on an analysis under
{9} The juvenile court found that the first prong of the permanent custody test was satisfied because, pursuant to
{10} Pursuant to
{11} The juvenile court further found that an award of permanent custody was in the children‘s best interest. When determining whether a grant of permanent custody is in the children‘s best interest, the juvenile court must consider all the relevant factors, including those enumerated in
Interactions and interrelationships of the children
{12} The first best interest factor requires the juvenile court to consider the “interaction and interrelationship of the child[ren] with the child[ren]‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child[ren.]”
{13} Although CSB scheduled a visitation between Mother and the children shortly after the commencement of the case, Mother failed to appear for that visitation. The agency then learned that there was a 5-year no contact order in effect between Mother and the three children. As soon as the agency learned that the no contact order had been lifted, the caseworker gave Mother the name and phone number of the children‘s counselor. Because Mother had not had any contact with the young children for so long, CSB and the counselor determined that any visitations must be in a therapeutic environment to allow Mother‘s reintegration into the children‘s lives. Despite receiving the children‘s counselor‘s contact information twice, Mother never called the counselor to arrange for visitation in a therapeutic setting. During the case, Mother left Ohio for Texas, and then for Alabama. Based on her long absence from the children‘s lives, the children have no relationship or bond with Mother.
{14} The children were all placed together in a therapeutic foster home, not because they require a therapeutic environment, but because that was the only home available to accept
Wishes of the children
{15} The second best interest factor requires consideration of the “wishes of the child[ren], as expressed directly by the child[ren] or through the child[ren]‘s guardian ad litem, with due regard for the maturity of the child[ren.]”
Custodial history of the children
{16} The third best interest factor requires consideration of the children‘s custodial history, including whether they have been in the temporary custody of CSB for 12 or more months of a consecutive 22-month period.
{17} The children have at all times during this case been placed together in the same foster home. They are in the process of transitioning successfully into a foster-to-adopt home, where their younger sibling also resides. The prospective foster family wishes to adopt T.K., D.W., and C.W., as well as their sibling.
The children‘s need for a legally secure permanent placement; less restrictive options
{18} The fourth best interest factor requires the juvenile court to consider the children‘s “need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency[.]”
{19} Because Mother had an ongoing case in Tuscarawas County, CSB coordinated with TCCS in regard to Mother‘s case plan objectives. Based on her prior diagnosis of bipolar disorder, Mother was required to engage in mental health services and follow all recommendations. The caseworker described Mother‘s engagement in services as sporadic. Mother was terminated from mental health services at Northeast Ohio Behavioral Health for failure to appear at two scheduled appointments. She participated in some inpatient services in Tuscarawas County, but she failed to follow up with recommended outpatient services and medication. Mother later began case management services at the Canton Crisis Center, but she failed to appear on the date she was supposed to meet with the caseworker there. Mother further failed to complete the parenting classes recommended as part of her mental health assessment. Although the caseworker believed that Mother was currently engaging in mental health services in Alabama, she had no further information because Mother had only recently signed a release to allow CSB to receive current reports.
{20} Mother also suffers from substance abuse issues. She failed to complete a required drug and alcohol assessment. When submitting to drug screens at TCCS, Mother was repeatedly testing positive for cocaine, even while pregnant. When the CSB caseworker tried to follow up with Mother at home, she learned that Mother had moved to Texas. The caseworker learned that Mother had recently been staying at a recovery house for substance abuse in Alabama, but that she had been terminated from that program the day before the permanent custody hearing for unknown reasons.
{21} The caseworker testified that she had concerns regarding Mother‘s stability. Mother never had stable housing in Ohio, and she remained transient during her stays in Texas and Alabama. Mother was not employed, but received disability income. Without stable
{22} The children have no relationship with Mother. They rarely mention Mother during counseling and have not asked any questions about her. Although the children have recently developed a relationship with their paternal aunt, she informed the caseworker that she was not able to care for them on a permanent basis. At the time of the hearing, the children were in the process of successfully integrating into a new foster home, in which their younger sibling has also been placed. The foster family wishes to adopt all four siblings to maintain the sibling group in a stable and permanent environment. The foster family also agreed to allow the children to continue to have a relationship with their paternal aunt. Both the caseworker and the guardian ad litem testified that the children would be able to have greater needed stability and permanence in their new foster home.
Applicability of Section 2151.414(E)(7)-(11) factors
{23} CSB withdrew its allegation that Mother had abandoned the children pursuant to
Conclusion
{24} The record demonstrates that this is not a case where the juvenile court clearly lost its way and created a manifest miscarriage of justice in finding that it was in the best interest of the children to be placed in the permanent custody of CSB. See Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20. There is an abundance of clear and convincing evidence to demonstrate Mother‘s long-term lack of commitment to the children and her inability to provide a stable environment. Based on her long-term absence from the children‘s lives, Mother and the
{25} The juvenile court‘s judgment terminating Mother‘s parental rights and awarding permanent custody to CSB was not against the manifest weight of the evidence. Mother‘s assignment of error is overruled.
III.
{26} Mother‘s sole assignment of error is overruled. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SCHAFER, J.
CARR, J.
CONCUR.
APPEARANCES:
KANDEE R. ROBINSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
MICHELLE TOMER, Guardian ad Litem.