In re S.W. Children

[Cite as In re S.W. Children, 2011-Ohio-1353.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES:
Hon. William B. Hoffman, P.J.
S./W. CHILDREN Hon. Julie A. Edwards, J.
Hon. John W. Wise, J.

Case No. 2010CA00321

OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2008JCV00849

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 21, 2011

APPEARANCES:

For Appellee For Appellant

LISA A. LOUY AARON KOVALCHIK
Legal Counsel 116 Cleveland Ave NW
Stark County Department Suite 808
Of Job and Family Services Canton, Ohio 44702
221 Third Street SE
Canton, Ohio 44702
Stark County, Case No. 2010CA00321 2

Hoffman, P.J.

{¶1} Appellant Francesca Steadman (“Mother”) appeals the October 19, 2010

Judgment Entry and October 19, 2010 Findings and Fact and Conclusions of Law

entered by the Stark County Court of Common Pleas, Family Court Division, which

terminated her parental rights, privileges and obligations with respect to her four minor

children and granted permanent custody of the children to Appellee Stark County

Department of Job and Family Services (“SCDJFS”).

STATEMENT OF THE FACTS AND CASE

{¶2} Mother is the biological mother of G.S. (DOB 10/8/98), D.W. (DOB

12/29/01), S.W. (DOB 10/24/05), and E.W. (DOB 6/19/07). On July 24, 2008, Mother

and David Wise, Jr., father of D.W., S.W., and E.W., were arrested and incarcerated for

felony intimidation of a witness.1 The condition of Mother’s home was unacceptable for

the children. The maternal grandmother reported she had been providing care for the

children as Mother was not doing so. SCDJFS permitted the children to stay with

maternal grandmother. However, on July 27, 2008, SCDJFS learned maternal

grandmother had threatened to kill the children and put antifreeze in their bottles.

Maternal grandmother was arrested for aggravated menacing and endangering

children. The children were removed from her home and were found to be infested with

lice. The trial court conducted an emergency shelter care hearing on July 30, 2008, and

placed the children into the temporary custody of SCDJFS.

{¶3} The trial court conducted an adjudicatory hearing on October 8, 2008. At

that time, SCDJFS moved to delete the allegations of neglect, which the trial court

1
David Wise, Jr. and the father of G.S. are not parties to this Appeal.
Stark County, Case No. 2010CA00321 3

granted. Mother stipulated to a finding of dependency. The trial court appointed

Attorney Brent A. Barnes as guardian ad litem for the children.

{¶4} SCDJFS filed a motion for permanent custody on June 11, 2009. The trial

court conducted a dispositional review hearing on August 18, 2009, at which time the

trial court extended temporary custody for six months as Mother was making progress

on her case plan. The trial court subsequently extended temporary custody an

additional six months until July 28, 2010. SCDJFS refilled its motion for permanent

custody on June 3, 2010. Mother filed a motion for a return of custody to her and for the

termination of SCDJFS’s involvement.

{¶5} The trial court conducted a hearing on the motion for permanent custody

on October 14, 2010.

{¶6} Wanda Pounds, the ongoing family service worker with SCDJFS assigned

to the case, testified, via a pre-adjudicatory order, Mother was to have a psychological

evaluation/parenting evaluation at Northeast Ohio Behavioral Health. The order also

required David Wise, Jr. to have a psychological evaluation at Melymbrosia. Mother

had her psychological evaluation/parenting evaluation conducted at Melymbrosia.

SCDJFS accepted the change of mother’s evaluation by Melymbrosia as the evaluation

had already been completed. The Melymbrosia report revealed Mother was in the low

range mentally and was unable to parent the children independently. The evaluator

recommended Mother have long-term parenting instructions and individual therapy, but

even with that, the evaluator did not feel Mother could handle parenting on her own.

{¶7} Mother attended Goodwill parenting, and received a certificate of

attendance. The parenting instructor noted Mother struggled to pay attention to all of
Stark County, Case No. 2010CA00321 4

the children, recalling several instances during which Mother was more involved with

the two youngest children and left the older two children to play independently or to play

with other children. On one occasion, D.W., the oldest daughter, struggled to get

Mother’s attention. After saying, “Mom”, a number of times, the child sat down and

cried for the last half-hour of the visit. While engaged in the Goodwill parenting

program, Mother was arrested for complicity to theft and obstructing official business.

{¶8} Pounds recalled a conversation with Mother regarding her need for a bus

pass as her car had been impounded. Mother could not get her car out of impound

because she did not have a driver’s license. Mother then admitted she “skirted” around

Alliance as not to run into the police and get in trouble for driving without a license.

{¶9} Mother’s case plan required her to attend individual counseling. Mother

started sessions at Trillium. The therapist reported Mother was not making much

progress. After SCDJFS filed its first motion for permanent custody, Mother began

doing some meaningful work and started to make progress. The therapist indicated

Mother had successfully completed the Trillium program, but felt her issues could be

better addressed with a more intensive parenting program. At that point, SCDJFS

contacted Goodwill Home-based to begin a home-based parenting program with

Mother. Mother completed the coursework and met with the instructor regularly.

Although Mother showed some frustration in balancing all four children, the Goodwill

instructor felt Mother was doing enough to proceed to unsupervised weekend

visitations. After the first weekend visit, the children reported maternal grandmother had

spent the weekend at Mother’s home. Mother had been informed on numerous

occasions maternal grandmother was not to have contact with the children. In addition,
Stark County, Case No. 2010CA00321 5

Pounds asked Mother not to take the children out excessively over the weekend as

S.W. was recovering from pneumonia. Nonetheless, Mother took the children out a

number of times. When the SCDJFS aid arrived ten minutes early to pick up the

children, Mother had the children waiting at the door with their coats on. Pounds

described Mother as frustrated and eager for the children to leave.

{¶10} During this time, Mother became involved with an individual named Ryan

Collins with whom she had her fifth child, C.C.2 Mother’s probation officer showed up

unannounced and Mother let him in only after he threatened to call the police and

violate her probation. While walking through the home, the probation officer found

Collins in one of the bedrooms, wearing female underwear with his hands down his

pants. After looking into Collins’ history, the probation officer learned Collins had a long,

ongoing history of inappropriate sexual behavior with young children. Pounds also

recalled when Mother became pregnant with C.C., she denied she was pregnant, and

took steps to avoid detection of the pregnancy and the birth of the child. At the time of

the hearing, Mother was still involved with Collins. Due to her involvement with Collins

and allowing the children to be with maternal grandmother, Mother’s unsupervised

weekend visits were terminated. Goodwill home-based parenting terminated Mother

from their program.

{¶11} Pounds also testified during the best interest portion of the hearing.

Pounds stated the children are Caucasian. G.S., the oldest, has been diagnosed with

ADHD, and is currently receiving therapy through Children and Adolescent Service

Center. During the summer, he spent time in therapeutic groups, learning social skills,

2
C.C. is the subject of a separate Appeal.
Stark County, Case No. 2010CA00321 6

and anger management skills. G.S. also has some cognitive issues and has an

independent education plan at school, but his therapist feels he needs a more extensive

evaluation. S.W., who was five at the time of the hearing, has speech delays and a lazy

eye. The girl recently had tubes implanted in her ears. She attends Head Start and is

receiving speech services, and her speech is improving rapidly. E.W., who was three at

the time of the hearing, has temper tantrums, but nothing which requires any

therapeutic services. Pounds indicated there were no issues with eight year old D.W.

{¶12} The three oldest children, G.S., D.W., and S.W., are in the same foster

home and have been there since July, 2008. In August, 2010, E.W. was moved into a

placement with C.C. All four children are doing well in their placement. Pounds

indicated SCDJFS has a prospective adoptive situation and the family is interested in

adopting all five children. Pounds also noted, although the children are bonded with

Mother, the children need a permanent home. Adoption would give the children stability

and safety, which remain issues in Mother’s home.

{¶13} Via Judgment Entry filed October 19, 2010, the trial court terminated

Mother’s parental rights, privileges and obligations with respect to the children, and

granted permanent custody of the children to SCDJFS. On the same day, the trial court

filed Findings of Fact and Conclusions of Law.

{¶14} It is from this judgment entry and the trial court’s findings of fact and

conclusions of law, Mother appeals, raising as her sole assignment of error:

{¶15} “I. JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS

OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING OF
Stark County, Case No. 2010CA00321 7

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

{¶16} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.1(C).

I

{¶17} In her sole assignment of error, Mother contends the trial court’s finding a

grant of permanent custody to SCDJFS would be in the children’s best interest was

against the manifest weight of the evidence.

{¶18} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent and credible evidence upon which the fact finder could base its judgment.

Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments

supported by some competent, credible evidence going to all the essential elements of

the case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.

{¶19} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶20} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to
Stark County, Case No. 2010CA00321 8

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's parents; (b) the

child is abandoned; (c) the child is orphaned and there are no relatives of the child who

are able to take permanent custody; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

{¶21} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with

due regard for the maturity of the child; (3) the custodial history of the child; and (4) the

child's need for a legally secure permanent placement and whether that type of

placement can be achieved without a grant of permanent custody.

{¶22} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.
Stark County, Case No. 2010CA00321 9

{¶23} If the child is not abandoned or orphaned, then the focus turns to whether

the child cannot be placed with either parent within a reasonable period of time or

should not be placed with the parents. Under R.C. 2151.414(E), the trial court must

consider all relevant evidence before making this determination. The trial court is

required to enter such a finding if it determines, by clear and convincing evidence, that

one or more of the factors enumerated in R .C. 2151.414(E)(1) through (16) exist with

respect to each of the child's parents.

{¶24} As set forth in our Statement of the Facts and Case, supra, all of the

service providers, after working with Mother, determined Mother was unable to parent

the children independently. During visits, Mother was unable to give her attention to all

of the children. D.W. became so frustrated trying to get Mother’s attention, she cried for

the last half-hour of one visit. When service providers believed Mother had progressed

to unsupervised weekend visitation, Mother went against Wanda Pounds’ directives.

Mother allowed maternal grandmother to stay with the children after maternal

grandmother had been charged with four counts of child endangering. Mother also

became involved with Collins, who has a long history of sexually inappropriate behavior

involving children. Mother either chose not to incorporate what she learned into her

parenting or was unable to do so.

{¶25} At the time of trial, the children had been in the custody of SCDJFS for

more than two years. G.S. was diagnosed with ADHD, and was receiving the

appropriate services. S.W. had delayed speech, but such was addressed with surgery

and speech therapy. All of the children are doing well in their placements and are

bonded with one another. The foster family caring for E.W. and C.C. are interested in
Stark County, Case No. 2010CA00321 10

adopting all five of the children. Pounds testified the children’s need for stability and

security outweighed the bonds that would be broken due to a grant of permanent

custody.

{¶26} Based upon the foregoing, we find the trial court’s finding it was in the

children’s best interest to grant permanent custody to SCDJFS was not against the

manifest weight of the evidence.

{¶27} Mother’s sole assignment of error is overruled.

{¶28} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.

By: Hoffman, P.J.

Edwards, J. and

Wise, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS

s/ John W. Wise______________________
HON. JOHN W. WISE
Stark County, Case No. 2010CA00321 11

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: :
:
S./W. CHILDREN :
:
: JUDGMENT ENTRY
:
:
: Case No. 2010CA00321

For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas, Family Court Division, is affirmed. Costs assessed to

Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS

s/ John W. Wise______________________
HON. JOHN W. WISE