In re A.W.

2023 Ohio 387

Opinion

[Cite as In re A.W., 2023-Ohio-387.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: A.W. : APPEAL NO. C-220523 TRIAL NO. F18-1426X :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 10, 2023

Alana Van Gundy, for Appellant Mother,

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Silvia Beck, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Kim Helfrich, Assistant Public Defender, for Appellee Guardian ad Litem. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge. {¶1} Mother appeals from the Hamilton County Juvenile Court’s judgment

granting permanent custody of mother’s child A.W. to the Hamilton County

Department of Job and Family Services (“HCJFS”). In two assignments of error,

mother challenges the court’s best-interest determination and contends that the court

erred in its admission of certain evidence. After a thorough review of the record, we

affirm the judgment of the juvenile court.

Background

{¶2} On September 6, 2018, A.W. was born prematurely and began

exhibiting signs of drug withdrawal shortly after birth. At that time, mother was

participating in court-ordered residential drug treatment at First Step Home. On

September 25, 2018, before A.W. was discharged from the hospital, HCJFS moved for

an ex parte emergency order of custody. The supporting affidavit notes that mother

was unable to manage her many medications and had been observed nodding off in

meetings at First Step Home. HCJFS filed a complaint for temporary custody the

following day, and interim custody was subsequently granted.

{¶3} In December 2018, the court held adjudication and disposition

hearings. A.W. was found to be dependent and temporary custody was granted to

HCJFS. HCJFS subsequently filed for two extensions of temporary custody—in July

2019 and January 2020. Both were granted.

{¶4} On July 20, 2020, HCJFS filed a motion to modify temporary custody

to permanent custody. A trial on the motion was held on March 24, 2021, June 30,

2021, November 29, 2021, and May 18, 2022. Mother was represented by counsel at

trial and opposed the motion. Father was represented by counsel at trial, though he

2 OHIO FIRST DISTRICT COURT OF APPEALS

did not personally appear. Father has also struggled with substance abuse and has

physically abused mother. Father’s counsel voiced support for mother, but expressed

at closing that father was amenable to the foster family adopting A.W. if that was found

to be in his best interest.

{¶5} On May 20, 2022, the magistrate granted permanent custody to HCJFS.

Mother objected to the magistrate’s decision on June 3, 2022. After a remand to

consider a now-resolved issue,1 the court overruled the objections to the magistrate’s

decision, and approved and adopted the magistrate’s decision.

{¶6} Mother timely appealed.

First Assignment of Error

{¶7} In mother’s first assignment of error, she contends that the juvenile

court’s determination that permanent custody is in A.W.’s best interest is based on

insufficient evidence and is against the manifest weight of the evidence.

{¶8} When we review the sufficiency of the evidence in a permanent-custody

case we “tak[e] a fresh look at the evidence to see whether it clearly and convincingly

supports the court’s decision.” In re M/E, 1st Dist. Hamilton No. C-200349, 2021-

Ohio-450, ¶ 8, citing In re C. Children, 1st Dist. Hamilton Nos. C-190650 and C-

190682, 2020-Ohio-946, ¶ 8. Clear and convincing evidence is evidence that “

‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the facts

sought to be established.’ ” In re L.H., 1st Dist. Hamilton No. C-220161, 2022-Ohio-

2755, ¶ 38, quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

“[W]e accept the trial court’s factual determinations if they are supported by ‘some

1The court remanded the matter to the magistrate to determine whether the Indian Child Welfare Act applied to this case. The magistrate determined that it did not. 3 OHIO FIRST DISTRICT COURT OF APPEALS

competent and credible evidence.’ ” In re M/E at ¶ 8, quoting In re W.W., 1st Dist.

Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46.

{¶9} Mother’s challenge to the manifest weight of the evidence directs us to

consider “whether the trial court lost its way and created such a manifest miscarriage

of justice in resolving conflicts in the evidence that its judgment must be reversed.” In

re P/W Children, 1st Dist. Hamilton No. C-200103, 2020-Ohio-3513, ¶ 27.

{¶10} The juvenile court is permitted to modify temporary custody to

permanent custody pursuant to the two-prong test of R.C. 2151.414(B)(1). The first

prong requires the court to find by clear and convincing evidence that one of the

conditions in R.C. 2151.414(B)(1)(a) through (e) is satisfied. The second prong requires

the court to find, also by clear and convincing evidence, that permanent custody is in

the best interest of the child considering “all relevant factors,” including those set forth

in R.C. 2151.414(D)(1)(a)-(e).

{¶11} First, the court found by clear and convincing evidence that A.W. had

been in the temporary custody of HCJFS for more than 12 months of a consecutive 22-

month period in satisfaction of R.C. 2151.414(B)(1)(d). Mother does not dispute this

finding. The record demonstrates that when the motion for permanent custody was

filed, A.W. had been in the temporary custody of HCJFS for over 19 months. While the

court also found by clear and convincing evidence that A.W. could not be placed with

either parent within a reasonable time, only one condition in R.C. 2151.414(B)(1) is

needed.

{¶12} Next, the court found that a grant of permanent custody to HCJFS was

in A.W.’s best interest. The statutory best-interest factors include:

4 OHIO FIRST DISTRICT COURT OF APPEALS

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers[, and others];

(b) The wishes of the child, * * * with due regard for the maturity of the

child;

(c) The custodial history of the child * * *;

(d) 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 to the agency;

(e) Whether any additional factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

R.C. 2151.414(D)(1).

{¶13} The court first considered the relationships between A.W. and mother,

father, and foster mother. The court found that “there is no relationship problem

between the mother and child,” but noted that their relationship had been

“time-limited” given A.W.’s immediate placement with his foster family. Kayla

Petrosky, an ongoing caseworker at HCJFS testified that mother and A.W. are bonded,

and that A.W. refers to mother as “mom” and is affectionate towards her. Laurie

Hartman, the visit facilitator that worked with mother and A.W. during their weekly

visits at the Family Nurturing Center, testified that mother and A.W. are bonded and

that A.W. “easily transitions to visits with her [and] engages in play,” converses with

her, and gives her hugs. The court found that father regularly visits and is bonded with

A.W. as well.

{¶14} Turning to A.W.’s relationship with his foster family, the court found

that A.W. lives in the family home with his foster mother, her wife, and their teenage

5 OHIO FIRST DISTRICT COURT OF APPEALS

son—and has lived there since he was around two weeks old. Foster mother expressed

a desire to adopt A.W. She testified that A.W.’s relationship is strongest with her

because she is A.W.’s main caretaker, but that he is also bonded with her wife and son.

Foster mother’s extended family also lives nearby and is bonded with A.W. Petrosky

testified that A.W. is “very bonded with his foster parents,” and that if he needs

something or gets upset, “he runs right to foster mom.” A.W. also refers to foster

mother and her wife as “mom.” Petrosky testified that A.W. “looks to them for comfort

and * * * it’s just very evident that that bond is definitely there.” Petrosky testified that

A.W.’s strongest bond is with his foster family.

{¶15} The court proceeded to a review of the child’s custodial history under

R.C. 2151.414(D)(1)(c). The court found that A.W. had been with the same foster family

since two weeks after his birth in 2018, and that he had never lived with mother or

father.

{¶16} The court also considered the guardian ad litem’s (“GAL”) testimony

that, at just four years old, A.W. lacked the maturity to directly express his wishes

about where he would like to live. See R.C. 2151.414(D)(1)(b). We have previously

indicated that this factor may be “of minimal value in determining [a child’s] best

interests” in cases of young children. In re P. & H., 1st Dist. Hamilton Nos. C-190309

and C-190310, 2019-Ohio-3637, ¶ 38. The GAL recommended that A.W. be placed in

the permanent custody of HCJFS.

{¶17} Turning to A.W.’s need for a legally secure placement, and whether that

could be achieved without a grant of permanent custody to HCJFS, the court found

that a remand of custody to mother “would be temporary in nature and would result

in the child’s removal for safety concerns.” See R.C. 2151.414(D)(1)(d). Driving this

6 OHIO FIRST DISTRICT COURT OF APPEALS

outcome were the court’s concerns related to mother’s supervision of A.W., mother’s

sobriety and engagement in mental-health treatment, mother’s relationship with

father, and mother’s employment status.

{¶18} Conversely, the court found that there was evidence that all of A.W.’s

needs were consistently being met in his foster home, and that this would continue if

A.W. were adopted.

{¶19} Mother’s substance-abuse history was a focal point of the court’s

findings. See generally In re: X.M.W., 1st Dist. Hamilton Nos. C-190568 and

C-190595, 2020-Ohio-449, ¶ 18 (considering mother’s substance-abuse history under

R.C. 2151.414(D)(1)(d)). The parties testified extensively about the validity of a positive

drug screen for methamphetamine. Ultimately, the court stated that it “cannot

conclude without additional evidence the validity of the claim of a positive drug test.

Nevertheless, there were multiple non-appearances at requested toxicology screens

and [mother’s] statement that she periodically does not turn on her phone” to field the

requests for those toxicology screens. The record supports this conclusion.

{¶20} The court considered, and the record also reveals that mother failed to

engage in mental-health treatment as required by the case plan. Mother has been

diagnosed with opioid-use disorder, depression, anxiety, and insomnia. And while she

regularly visited the Center for Addiction Treatment to receive suboxone, she failed to

engage with a mental-health professional. A visit note from November 2020 reads:

“PATIENT STILL WITHOUT PCP OR MENTAL HEALTH PROVIDER AND HAS

BEEN USING URGENT CARES AND RANDOM PROVIDERS FOR MED REFILLS.”

Another reads: “Patient’s participation in therapy is noted to be poor.”

7 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} The court also found that mother lacked the financial resources to

provide for A.W. because she did not have stable employment throughout the

pendency of the case as required by her case plan. Mother testified that she had worked

three temporary jobs for a few months in the summer of 2020, but that she had

difficulty finding stable employment because of her prior convictions. On the last day

of trial, mother testified that she had had “an acceptance letter” for a job, but it was

not yet finalized.

{¶22} Mother’s lack of financial resources also gave rise to a concern that she

would need to rely on father, with whom she has a difficult relationship, for financial

assistance. Mother testified about father physically abusing her while she was

pregnant with A.W. and that she had concerns about his sobriety and mental health.

While mother testified that she declined father’s financial support, she also indicated

that he and his family have provided financial assistance to her in the past. In fact,

mother lives in the same apartment she lived in with father before she entered

residential treatment, and testimony suggested that he may be paying the rent with

some regularity. This bolstered the court’s concern that father may have continued

involvement in A.W’s life if he were returned to mother’s custody.

{¶23} Based on the foregoing, we hold that the juvenile court’s decision was

supported by the sufficiency and the manifest weight of the evidence. The court

engaged in the proper analysis, and the record clearly and convincingly supports the

court’s best-interest determination. While there were a few conflicts in the evidence

specifically related to mother’s drug-screen history, the court expressly declined to rely

on the positive results. And where other conflicts arose, the court did not lose its way

in resolving them.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶24} The first assignment of error is overruled.

Second Assignment of Error

{¶25} In mother’s second assignment of error, she contends that certain

evidence relied on by the trial court should have been excluded as hearsay or because

it lacked foundation. Mother references approximately ten instances where she

contends that evidence—primarily testimony—should have been excluded.

{¶26} Mother did not raise this issue in her objections to the magistrate’s

decision, so pursuant to Juv.R. 40(D)(3)(b)(iv) we review this assignment only for

plain error. Plain error is found in “exceptional circumstances where error, to which

no objection was made at the trial court, seriously affects the basic fairness, integrity,

or public reputation of the judicial process * * *.” Goldfuss v. Davidson, 79 Ohio St.3d

116, 122-123, 679 N.E.2d 1099 (1997); see In re W.W., 1st Dist. Hamilton Nos.

C-110363 and C-110402, 2011-Ohio-4912, at ¶ 60.

{¶27} The evidence that mother refers to generally falls into three categories:

(1) evidence appropriately limited at trial; (2) statements of parties to the action; and

(3) evidence that, even if improper, did not prejudice mother.

{¶28} First, several statements that mother refers to in her brief were objected

to at trial and those objections were sustained. For instance, mother contends that

certain emails related to a relapse were admitted despite being hearsay. However,

when this topic was discussed at trial, trial counsel raised a hearsay objection, and the

magistrate sustained the objection and repeatedly stated that he would not consider

any emails or other evidence about the therapist’s observations for their truth. Mother

has not demonstrated, and the record does not reveal, that this evidence was

improperly relied on later.

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} Next, mother argues that certain testimony presenting her statements,

or statements of father were hearsay. However, mother and father were both parties

to the action. See In re S.G., 1st Dist. Hamilton No. C-200261, 2020-Ohio-5244, ¶ 24,

citing Juv.R. 2(Y) (“ ‘Party’ means * * * the child’s parent or parents * * *.”). And

because the statements were offered against mother, they were not hearsay under

Evid.R. 801(D)(2)(a).

{¶30} Finally, some of the evidence challenged by mother simply does not rise

to the level of plain error. This includes a question posed to mother about a counselor’s

statements to HCJFS (“So would you be shocked if [your addiction counselor] told JFS

that he has tried to get you into actual therapy, and you continued to refuse?”) and

testimony from the GAL about A.W.’s perception of home. Even if this disputed

evidence was inadmissible, mother has not demonstrated how she was prejudiced, if

at all, by its admission. The second assignment of error is overruled.

Conclusion

{¶31} In the light of the foregoing analysis, we overrule both of mother’s

assignments of error. The judgment of the juvenile court is affirmed.

Judgment affirmed.

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.