[Cite as In re J.W., 2014-Ohio-2950.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
WEST / MITCHELL CHILDREN :
J.W. : Hon. William B. Hoffman, P.J.
A.M. : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
:
: Case No. 2014CA00032
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2011JCV00254
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 16, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
STARK COUNTY D.J.F.S. JENNIFER ROBERTS
LISA A. LOUY 401 West Tuscarawas St. Suite 300
221 Third Street S.E. Canton, OH 44702
Canton, OH 44702
Stark County, Case No. 2014CA00032 2
Delaney, J.
{¶1} Appellant S.W. (“Mother”) appeals from the February 3, 2014 Judgment
Entry and Findings of Fact and Conclusions of Law of the Stark County Court of
Common Pleas, Family Court Division. Appellee is the Stark County Department of Job
and Family Services (“Agency”).
{¶2} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
FACTS AND PROCEDURAL HISTORY
{¶3} Mother has three children: J.W. (DOB. March 6, 2005), A.M. (age 4),1 and
Z.M. (age 1 ½). This appeal concerns only J.W. Mother does not have custody of A.M.
and Z.M. because she consented to a change of legal custody of those children to an
aunt in Chicago. The father of J.W. is not a party to this appeal.
{¶4} Mother became involved with the Agency in 2009 upon the birth of one of
J.W.’s siblings. In March 2010, Mother was arrested for theft and drug possession and
served five days in jail. Afterward she sought drug treatment but in February 2011 she
was arrested for O.V.I. and possession of drug paraphernalia, resulting in a jail term of
10 days.
{¶5} The Agency filed a complaint alleging J.W. to be dependent and/or
neglected on February 24, 2011. A shelter care hearing was held on February 25, 2011
and J.W. was ordered into the Agency’s temporary custody.
{¶6} J.W. was found to be dependent on May 24, 2011. The trial court placed
J.W. in the temporary custody of the Agency, found the Agency made reasonable
1
Although the case caption references A.M., Mother does not contest the change of
legal custody of A.M.
Stark County, Case No. 2014CA00032 3
efforts to prevent the need for removal of the child from the home and approved and
adopted a case plan.
{¶7} Mother worked case plan services and J.W. returned to Mother’s home on
extended visits. On March 1, 2012, J.W. was returned to Mother’s custody subject to
protective supervision. The family’s caseworker testified that at this point in time,
Mother had done very well with her case plan; she completed Goodwill Parenting and
Quest alcohol and drug treatment.
{¶8} Also in March 2012, however, Mother was again charged with drug
possession and possession of drug paraphernalia. Mother did not advise the Agency of
this arrest.
{¶9} Mother also began testing positive for drugs and had more drug-related
arrests. Mother’s arrests continued with a probation revocation in August, 2012
resulting in her incarceration in a community-based corrections facility. Mother was
released in December 2012 but tested positive for cocaine in April 2013 and November
2013. Mother’s probation was revoked and she was placed in SRCCC, where she
remained at the time of trial.
{¶10} On June 18, 2012, J.W. was returned to temporary custody of the Agency
because of Mother’s arrest.
{¶11} On July 17, 2012, the trial court reviewed the case and found the Agency
made reasonable efforts to finalize permanency planning for J.W. and compelling
reasons precluded a filing for permanent custody. Temporary custody was extended
while the Agency considered possible relative placements.
Stark County, Case No. 2014CA00032 4
{¶12} On March 8, 2013, J.W. was placed in a Planned Permanent Living
Arrangement (PPLA) to permit interstate home studies to be completed for a relative in
Chicago, the aunt who obtained legal custody of J.W.’s siblings. Eventually, though,
placement in Chicago did not work out and J.W. returned to Stark County foster care.
{¶13} On November 18, 2013, the Agency moved for permanent custody as to
J.W. only.
{¶14} The trial court heard evidence on January 30, 2014.
{¶15} Evidence at trial established Mother was presently serving a criminal
sentence at the Stark Regional Community Correction Center (SRCCC) and was not
due to be released until mid-March. SRCCC is a prison alternative; upon release,
Mother would still be on felony probation and violations thereof could result in new
criminal charges or prison time. Although Mother did well at SRCCC, upon her release
she would have no independent housing and her discharge would include housing at
the YWCA. In SRCCC Mother was involved in counseling for anger management,
victim awareness, and chemical dependency.
{¶16} At the time of trial, Mother had not been in touch with the caseworker for
approximately two months.
{¶17} Mother acknowledged she remains a drug addict despite numerous
attempts and opportunities to obtain treatment. She acknowledged the traumatic effect
her drug abuse has had on J.W. and agreed he needs and deserves a permanent,
stable family environment. She testified she has not been the mother her son deserves
and said she wants him to know she never gave up on him and loves him very much.
Stark County, Case No. 2014CA00032 5
{¶18} J.W. is an 8-year-old Caucasian boy with no medical issues. He has been
diagnosed with A.D.H.D. and is medicated for that condition; he is sometimes impulsive
and acts out, requiring redirection. These conditions have improved in the time J.W.
has been in foster placement, which is a loving, positive, supportive environment that is
very structured.
{¶19} J.W. last saw Mother in late August or early September 2013 after he
returned from Chicago. His visits with Mother revealed the two are definitely bonded,
although Mother was frequently crying and upset during the visits and had to be
instructed to keep her composure. During one visit at a McDonald’s Playland, Mother
climbed into the playground equipment with J.W. and sat with him, crying.
{¶20} J.W.’s caseworker testified in her opinion it is in J.W.’s best interest for
permanent custody to be granted to the Agency, despite the bond with Mother, because
the risk of repeating Mother’s pattern of substance abuse is too high. The limited
interaction J.W. has with Mother makes him nervous and uncomfortable. He is old
enough to be aware of and to describe aspects of Mother’s behavior that make him
uncomfortable, including her distress during visits. J.W. told the caseworker about
Mother’s behavior while she was using, often falling down or asleep, requiring him to
care for his younger sister. He told his foster mother he loves his mom and remembers
being with her for better and for worse. J.W. has already suffered the loss of his
siblings and, in the caseworker’s estimation, struggles with the fact he will not be living
with them in Chicago.
{¶21} J.W. has been in the same foster placement each time he has been in
Agency custody. His foster family has been licensed for a long time and has fostered
Stark County, Case No. 2014CA00032 6
many children, some of whom they have adopted. Adoption of J.W. is a possibility. He
has many siblings of a wide age range in the foster family and the home is described as
a very structured environment. He refers to his foster parents as “Mom” and “Dad.”
{¶22} A relative who lives in Michigan contacted the Agency at one point to
inquire about custody of J.W. The caseworker explained the interstate home study
process and although the relative initially expressed some hesitation, immediately prior
to the permanent custody hearing she did request that a home study be initiated.
{¶23} Upon inquiry by the trial court, the guardian ad litem stated he agreed
J.W.’s best interests are served by granting permanent custody to the Agency.
{¶24} The trial court journalized its findings of fact and conclusions of law on
February 3, 2014. The trial court terminated Mother’s parental rights and granted
permanent custody of J.W. to the Agency.
{¶25} Mother now appeals from the trial court’s Judgment Entry and Findings of
Fact and Conclusions of Law.
{¶26} Mother raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶27} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY
TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES
(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
THAT IT IS IN THE BEST INTEREST OF THE MINOR CHILDREN TO GRANT
PERMANENT CUSTODY.”
Stark County, Case No. 2014CA00032 7
{¶28} “II. THE TRIAL COURT ERRED BY FINDING GROUNDS FOR
PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶29} Mother’s two assignments of error are related and will be considered
together. Mother argues the trial court’s decision to grant permanent custody to the
Agency is not in J.W.’s best interest and is against the manifest weight of the evidence.
We disagree.
{¶30} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477.
{¶31} If some competent, credible evidence going to all the essential elements
of the case supports the trial court's judgment, an appellate court must affirm the
judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
Stark County, Case No. 2014CA00032 8
{¶32} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶33} 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.
{¶34} 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
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.
{¶35} 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, a trial court will
Stark County, Case No. 2014CA00032 9
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.
{¶36} 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.
{¶37} In this case the trial court found J.W. was abandoned by Mother based
upon her lack of contact with him for more than 90 days [R.C. 2151.414(B)(1)(b)] and
J.W. was in the temporary custody of the Agency for a period in excess of twelve
months during a consecutive 22-month period [R.C. 2151.414(B)(1)(d)]. These findings
are supported by clear and convincing evidence and Mother does not challenge them.
R.C. 2151.414(E) Factors: Clear and Convincing Evidence
{¶38} The trial court also found J.W. could not be placed with Mother within a
reasonable time or should not be placed with Mother, a finding Mother challenges. If the
child is not abandoned or orphaned, 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
Stark County, Case No. 2014CA00032 10
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.2
{¶39} The trial court found that notwithstanding the reasonable case planning
and diligent efforts of the Agency to assist Mother to remedy the problems that initially
caused J.W. to be placed outside the home, Mother failed to remedy the conditions
causing J.W. to be placed outside of the home. R.C. 2151.414(E)(1). Mother argues she
substantially complied with case plan services and almost completed SRCCC, which
she describes as “intensive inpatient treatment.” While evidence does show Mother
substantially complied with the case plan requirements, the statute provides she must
substantially remedy the conditions that caused her child to be placed outside of the
home. We are compelled to find Mother’s cycle of treatment and relapse still poses a
high risk to the safety and stability of J.W.
{¶40} The trial court commended Mother’s attempts at battling her addiction, as
do we, but noted the cycle of substance abuse continues. Mother has relapsed in the
past and the initial concerns that led to Agency involvement three years ago have not
been alleviated. Despite completion of Goodwill Parenting and Quest treatment for
substance abuse, Mother again tested positive for drugs and was arrested for drug-
related activity. Her substance abuse has led to criminal activity and time spent in jail
and prison alternatives. The risks to J.W. have not lessened. Upon release from
2
The trial court also found J.W. could not be placed with his father, J.S., within a
reasonable time or should not be placed with him within a reasonable time. J.S. is not a
party to this appeal.
Stark County, Case No. 2014CA00032 11
SRCCC, Mother will not have independent housing. Although Mother’s case manager
at SRCCC testified she is doing well in the program, she only monitors Mother’s
progress based upon reports from Mother’s various counseling programs. Another
relapse will result in prison.
{¶41} We find the trial court’s decision is supported by the evidence presented
under R.C. 2151.414(E)(1).
Best Interests of J.W.
{¶42} We next turn to the issue of best interests. We have frequently noted “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given
the nature of the proceeding and the impact the court's determination will have on the
lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark No.2000CA00244,
2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642
N.E.2d 424 (8th Dist.1994). The trial court determined it was in the best interest of the
children to be placed in the permanent custody of the Agency pursuant to R.C.
2151.414(D) and we agree.
{¶43} J.W. deserves safety, stability, and permanence. We do not question
Mother’s demonstrated love for J.W.; she acknowledges her addiction and profoundly
regrets the trauma it has caused for J.W. Unfortunately, though, the record of this case
demonstrates J.W. has been removed twice due to Mother’s relapses, the second time
despite the availability of case plan services. His foster placement is positive for him
and provides structure, love, and support he needs. We acknowledge J.W. is suffering
not only the loss of his Mother but also the loss of his siblings who remain in Chicago.
Stark County, Case No. 2014CA00032 12
Permanent custody will permit the upheaval and trauma to end. Allowing Mother more
time to complete drug treatment is not in J.W.’s best interest.
{¶44} We conclude the trial court did not err in finding J.W. cannot or should not
be placed with Mother within a reasonable period of time and the grant of permanent
custody to the Agency is in the child’s best interests.
{¶45} Mother’s first and second assignments of error are overruled.
CONCLUSION
{¶46} Mother’s two assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Family Court Division is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.