[Cite as In re K.W., 2019-Ohio-2936.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: W. CHILDREN. : APPEAL NOS. C-190245
C-190246
: TRIAL NO. F07-1763Z
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 19, 2019
Phyllis Schiff, for Appellant Mother,
Cynthia Daugherty, In re Williams Attorney, for Appellants K.W. and K.W.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Amanda Robinson,
Assistant Public Defender, Appellee Guardian ad Litem for K.W. and K.W.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} Mother appeals the trial court’s judgment terminating her parental
rights with respect to her two youngest children, K.W.1, currently nine years old, and
K.W.2, currently six years old. The children, through their In re Williams attorney,
also appeal the trial court’s judgment granting permanent custody to the Hamilton
County Department of Job and Family Services (“HCJFS”). For the following
reasons, we affirm.
{¶2} Mother first had contact with HCJFS in December 2007 when her
three older children were removed from her care. The children were removed from
the home when, on two separate occasions, the children’s daycare provider returned
the children to their home to find that mother was not present and no childcare had
been arranged. The juvenile court adjudicated the three older children dependent,
and granted legal custody of mother’s son to the child’s father, and legal custody of
mother’s two older daughters to paternal grandparents. The court based its decision
on the facts that mother suffered from an untreated mental-health issue, had not
complied with her case-plan services, including urine screens, and had not visited
with the children regularly or attended the most recent court hearings.
{¶3} In 2010, mother gave birth to K.W.1 and, three years later, gave birth
to K.W.2. In 2014, mother moved for custody of her two older daughters who were
in the legal custody of their paternal grandparents. The paternal grandparents,
believing that mother was now able to parent appropriately, supported mother’s
motion and the trial court granted legal custody to mother. A year later, the paternal
grandparents moved to regain custody of the two older children based on the
children’s report that mother was staying out all night, calling them names, hitting
them and withholding food from them.
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{¶4} In June 2015, HCJFS removed all four children from mother’s care
based on the allegation that mother had stomped and punched K.W.2 causing her
injury. HCJFS investigated, and the two older children admitted that mother had
“stomped, punched and kicked” K.W.2. HCJFS implemented a safety plan, placing
the two older girls with their paternal grandparents and placing K.W.1 and K.W.2
with mother’s former foster parent. Unfortunately, mother’s behavior disrupted the
safety plan for K.W.1 and K.W.2, causing HCJFS to move for interim temporary
custody of all four girls. Mother agreed to interim custody, and the court ordered
that the two older children remain with their paternal grandparents and K.W.1 and
K.W.2 be placed in foster care.
{¶5} The juvenile court adjudicated all four children dependent in May
2016, and awarded legal custody of the two older children to paternal grandparents
and ordered K.W.1 and K.W.2 to remain in the temporary custody of HCJFS. The
court ordered mother to participate in supervised visitation, case management,
parenting classes, and toxicology screens and to follow any recommendations from a
diagnostic assessment performed by Family Access to Integrated Recovery (“FAIR”).
{¶6} FAIR recommended that mother participate in individual counseling
to work on her impulse control and anger issues. Mother did not report any
substance-abuse issues at that time. Mother began individual therapy through
Greater Cincinnati Behavioral Health (“GCB”) but in the December 2015 semi-
annual review, HCJFS reported that mother’s therapist believed mother required
more intensive services than GCB could provide. Mother reported at that time that
she had been diagnosed with depression and bipolar disorder. Mother eventually
stopped attending therapy.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} In the summer of 2016, mother was convicted of criminal simulation
and the unauthorized use of a motor vehicle. She was sentenced to 11 months of
community control. She was also involved in a domestic-violence incident in 2016
with the father of K.W.2, who was arrested but not convicted because mother refused
to testify against him. K.W.2’s father reported that the domestic dispute was caused
by mother stealing drugs that he had been selling out of mother’s home. HCJFS
reported that mother tested positive for cocaine in the summer of 2016. Mother
admitted to recreational use but reported that she was not addicted.
{¶8} In December 2016, mother testified positive for alcohol during a
toxicology screen, and one month later tested positive for cocaine. HCJFS referred
mother to FAIR for another diagnostic assessment. FAIR recommended mother
start outpatient drug treatment as well as resume mental-health treatment. Mother
attended an intake meeting at the Talbert House for substance-abuse and mental-
health treatment, but Talbert House discharged mother in March 2017 because she
had not been participating in services. Around that time mother requested that
HCJFS investigate an aunt and a family friend as possible legal custodians of the
children, but those suggested people were unwilling or unable to care for the
children.
{¶9} In April 2017, HCJFS moved for permanent custody of the children,
and reported to the court, at the semiannual review, that K.W.1 and K.W.2 were still
residing in the same foster home, that foster mother participated in therapy with
them and that the children displayed a bond with their foster mother. During this
review, HCJFS also reported that K.W.1 was addressing separation issues in therapy
and had expressed “a fear of going home to mother.” Further, K.W.1 had an
“episode” at school, which K.W.1 explained was caused by her fear that she was going
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OHIO FIRST DISTRICT COURT OF APPEALS
to be returned to her mother’s care. With respect to K.W.2, her therapist testified at
the permanent-custody proceeding that K.W.2 did not discuss her mother at all
during therapy, but indicated that her foster mother “takes good care of her.” Her
therapist then concluded that K.W.2 was “presenting as calmer in the foster care
setting” and that a change of environment, i.e., returning to mother’s care, would not
be in K.W.2’s best interest.
{¶10} In September 2017, mother began participating in mental-health and
substance-abuse treatment at the Talbert House. In early 2018, coinciding with the
start of the permanent-custody proceeding, mother began supervised visitation with
K.W.1 and K.W.2 at the Family Nurturing Center. During the permanent-custody
proceeding, in April 2018, mother again tested positive for cocaine. At the
conclusion of the custody proceeding, the juvenile magistrate granted HCJFS’s
motion for permanent custody. The mother and the children each filed objections to
the magistrate’s decision, which the juvenile court overruled.
{¶11} Mother and the children, through their In re Williams attorney, now
appeal the trial court’s judgment terminating mother’s parental rights and granting
permanent custody of K.W.1 and K.W.2 to HCJFS. Both appeals raise the same
single assignment of error, which we consider together: that the juvenile court erred
by granting permanent custody to HCJFS. We are unpersuaded.
Standard of Review
{¶12} The termination of parental rights is governed by R.C. 2151.414.
Before a juvenile court may terminate parental rights, it must find that it is in the
child’s best interest to be placed in the permanent custody of the moving agency.
R.C. 2151.414(B)(1) and (D). It must also find one of the four conditions listed in
R.C. 2151.414(B)(1) exists. One of those conditions is that “[t]he child has been in the
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OHIO FIRST DISTRICT COURT OF APPEALS
temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month
period[.]” R.C. 2151.414(B)(1)(d). The court must find both prongs by clear and
convincing evidence. We will not substitute our judgment for that of the trial court
where there is competent and credible evidence supporting the trial court’s
determination. See, e.g., In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-
110402, 2011-Ohio-4912, ¶ 46; In re A.J.O. and M.N.O., 1st Dist. Hamilton No. C-
180680, 2019-Ohio-975, ¶ 6.
{¶13} Here, the trial court determined that the condition listed in R.C.
2151.414(B)(1)(d) applied. In order to fulfill that condition, “[t]he child has [to have]
been in the temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive twenty-
two-month period[.]” A child is considered to have entered the temporary custody of
an agency, for the purposes of R.C. 2151.414(B)(1), on the earlier of the date the child
is adjudicated or the date that is 60 days after the removal of the child from the
home. Here, K.W.1 and K.W.2 were removed from mother’s home on June 9, 2015.
Sixty days after the children’s removal is August 8, 2015. At the time the permanent-
custody motion was filed on April 24, 2017, K.W.1 and K.W.2 had been in the
temporary care of HCJFS for 20 months. Given that there is competent and credible
evidence to support the trial court’s determination that the condition set forth in R.C.
2151.414(B)(1) was met, we turn to the second prong of the test.
Best Interest
{¶14} In assessing the best interest of a child for purposes of a permanent-
custody determination, a juvenile court must consider all relevant factors, including:
(a) the child’s interaction with parents, siblings, relatives, foster caregivers and out-
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OHIO FIRST DISTRICT COURT OF APPEALS
of-home providers, and any other person who may significantly affect the child; (b)
the wishes of the child, with due regard for the maturity of the child; (c) the custodial
history of the child, including whether the child has been in the temporary custody of
a public children services agency for twelve or more months of a consecutive twenty-
two-month period; (d) the child’s need for a legally secure placement and whether
that type of placement can be achieved without a grant of permanent custody; and
(e) whether any of the factors under R.C. 2151.414(E)(7) to (11) apply. See R.C.
2151.414(D)(1)(a)-(e); In re Z.P., 1st Dist. Hamilton Nos. C-160572, C-160584 and C-
160620, 2018-Ohio 6987, ¶ 31.
{¶15} A review of the record demonstrates that there is ample competent and
credible evidence to support the juvenile court’s determination that a grant of
permanent custody to HCJFS is in the children’s best interest.
{¶16} R.C. 2151.414(D)(1)(a). Before addressing mother’s relationship
with the children, we note that K.W.1’s father is deceased. K.W.2’s father has a
history of domestic violence with mother, as well as a significant history of other
criminal activity. K.W.2’s father did not participate in case services offered by
HCJFS and has no bond or relationship with his daughter.
{¶17} With respect to mother, the record demonstrates that she has a bond
with the children and has visited with the children throughout the pendency of the
case, although not consistently. For example, there was a six-month period where
mother visited the children only once. During HCJFS’s three-year period working
with mother, her time with the children never advanced beyond supervised
visitation. The children are doing well with their foster family and have a bond with
their foster mother, who participates in their therapy. Further, K.W.2’s therapist
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that K.W.2 was calmer in the foster placement and that it would not be in
K.W.2’s best interest to change her environment.
{¶18} R.C. 2151.414(D)(1)(b). The children, through their In re Williams
attorney, indicated that they do not want their relationship with their mother to be
permanently severed but they did not indicate that they wanted to live with mother.
K.W.1 acted out at school because she feared being returned to her mother’s care.
K.W.2’s therapist testified that K.W.2 did not speak of her mother during therapy but
reported that she liked her foster mother.
{¶19} The children’s guardian ad litem (“GAL”) supported a grant of
permanent custody to HCJFS. The GAL reported that mother’s “lackluster”
engagement with services, i.e., inconsistent participation in mental-health treatment,
testing positive several times for cocaine, including during the permanent-custody
hearing, as well as being convicted of two crimes, indicates that it is not in the best
interest of the children to be returned to mother’s care.
{¶20} R.C. 2151.414(D)(1)(c). The children have been out of mother’s
care for far more than 12 out of 22 consecutive months. In fact, the children have
been out of mother’s care for almost four years, more than half of K.W.2’s life.
{¶21} R.C. 2151.414(D)(1)(d). The children are in need of a legally secure
placement and this cannot be achieved without a grant of permanent custody.
Mother tested positive for cocaine three times after the children were removed from
the home, the last time being in April 2018, during the permanent-custody
proceeding. At the time of the permanent-custody proceeding, mother did not
demonstrate a positive, sustained behavior change with respect to her sobriety.
{¶22} R.C. 2151.414(D)(1)(3). None of the factors set forth in R.C.
2151.414(E)(7) through (11) apply to mother.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Based on the foregoing, we hold that there was competent and credible
evidence to support the juvenile court’s determination that it was in the best interest
of the children to grant permanent custody of the children to HCJFS.
{¶24} Accordingly, in the appeal numbered C-190245, mother’s single
assignment of error is overruled, and the judgment of the trial court is affirmed. In
the appeal numbered C-190246, the children’s single assignment of error is
overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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