In re C.W.

2021 Ohio 4156

• Court: Ohio Court of Appeals
• Decided: November 24, 2021
• Docket: 29974, 29978
• Status: Published

Opinion

[Cite as In re C.W., 2021-Ohio-4156.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: C.W. C.A. Nos. 29974 B.M. 29978

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 18-11-1179 DN 18-11-1180

DECISION AND JOURNAL ENTRY

Dated: November 24, 2021

CARR, Presiding Judge.

{¶1} Appellants, A.W. (“Mother”) and B.M. (“Father”) appeal from a judgment of the

Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights.

This Court affirms.

I.

{¶2} Mother is the biological mother of C.W., born June 21, 2010; and B.M., born

December 14, 2012. Father is the biological father of only B.M. The father of C.W. was not

involved in the child’s case.

{¶3} On November 27, 2018, Summit County Children Services Board (“CSB”) filed

complaints to allege that C.W. and B.M. were abused, neglected, and dependent children. The

children were removed from the home by the police pursuant to Juv.R. 6 after an incident of

domestic violence between Mother and Father. When authorities arrived at the home to arrest 2

Father, they discovered that the home was deplorable and had numerous safety concerns,

including exposed wiring, mold, and a leaky ceiling. Mother also reported that Father’s violence

against her had been ongoing; that the older child, C.W., sometimes tried to intervene; and that

Father also verbally abused C.W. The complaint further alleged that Mother had lost legal

custody of three other children in 2009, in prior juvenile cases based on concerns about domestic

violence, as well as Mother’s drug use and mental health.

{¶4} During February 2019, C.W. and B.M. were adjudicated abused, neglected, and

dependent children and were later placed in the temporary custody of CSB. The case plan

focused on both parents addressing their mental health and substance abuse problems. Over the

next two years, however, neither parent consistently engaged in any treatment. They also failed

to regularly visit their children or maintain contact with the caseworker or guardian ad litem.

{¶5} For the first year of this case, the children resided with the maternal grandparents.

On November 6, 2019, CSB moved the trial court to place the children in the legal custody of the

grandparents. It later withdrew that motion, however, because the grandfather (“Grandfather”)

had become very ill and the grandparents informed CSB that they could no longer care for the

children. The children were placed in foster care and temporary custody was extended to enable

CSB to pursue an alternative relative placement. Grandfather later passed away.

{¶6} On November 20, 2020, CSB moved for permanent custody of both children. It

alleged that the children had been in its temporary custody for more than 12 months of a

consecutive 22-month period and that permanent custody was in their best interest. As an

alternative disposition to permanent custody, Mother requested that legal custody be granted to

her or the maternal grandmother (“Grandmother”). Following a final dispositional hearing, the 3

trial court terminated parental rights and placed C.W. and B.M. in the permanent custody of

CSB.

{¶7} Mother and Father separately appealed, and their appeals were later consolidated.

Mother raises one assignment of error and Father raises two. Mother’s assignment of error will

be addressed along with Father’s second assignment of error because they are closely related.

II.

FATHER’S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT TERMINATED THE PARTIES’ PARENTAL RIGHTS AS THE TRIAL COURT’S DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶8} Father’s first assignment of error challenges the weight of the evidence supporting

the trial court’s permanent custody decision. Because Father is the biological parent of only

B.M., he confines his argument to that child and this Court will likewise limit its review of this

assignment of error to that child.

{¶9} 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 R.C.

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of

the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing 4

evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.” (Internal quotations omitted.) In re Adoption of Holcomb,

18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus.

{¶10} 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. When weighing the

evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”

Id. at ¶ 21.

{¶11} The trial court found that the first prong of the permanent custody test was

satisfied because B.M. had been in the temporary custody of CSB for at least 12 months of a

consecutive 22-month period. Father does not dispute that finding but instead challenges the

trials court’s finding that permanent custody was in the best interest of B.M.

{¶12} When determining the child’s best interest, the trial court must consider all

relevant factors, including: the interaction and interrelationships of the child, the child’s wishes,

the child’s custodial history; the child’s need for permanence and whether such a placement can

be achieved without a grant of permanent custody.1 R.C. 2151.414(D)(1)(a)-(d); see In re R.G.,

9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11.

1 Although the trial court was also required to consider any relevant factors set forth in R.C. 2151.414(E)(7)-(11), none of those factors apply to this case. See R.C. 2151.414(D)(1)(e). 5

{¶13} During this case, the interaction between Father and B.M. was limited to

supervised visitation because Father never complied with the mental health or substance abuse

components of the case plan. Father did not submit to regular drug screening and, when he did,

he tested positive for amphetamine and methamphetamine. Father did not regularly attend his

scheduled visits with B.M., nor did he maintain contact with the caseworker.

{¶14} B.M. had expressed that he was uncertain about where he wanted to live. The

guardian ad litem had supported legal custody to Father at one point during the case, but then

Father began testing positive for drugs again. The guardian ad litem expressed concern that

Mother and Father continued their off and on relationship with each other because each parent

was a negative influence on the other. Because the parents continued to use drugs and otherwise

lacked stability in their lives, the guardian ad litem recommended permanent custody to CSB.

{¶15} B.M.’s custodial history had included an extended period living in temporary

placements. By the time of the hearing, B.M. had been in the temporary custody of CSB for

more than two years. CSB had filed its complaint nearly two years and four months earlier, so

the trial court could not extend temporary custody any longer. R.C. 2151.353(G). Neither parent

was able to provide B.M. with a safe and stable home and CSB had been unable to find a suitable

relative who was willing and able to do so. The trial court reasonably concluded that B.M.

needed a legally secure permanent placement and that permanent custody was the best option to

provide him with stability.

{¶16} Although Father argued at the hearing and again on appeal that Grandmother was

willing and able to provide a suitable home for B.M., that argument was not supported by the

evidence presented at the hearing. Several witnesses testified about Grandmother’s inability to

meet the daily needs of B.M. or provide him with a stable home. While B.M. had lived with the 6

maternal grandparents, Grandfather had been the primary caretaker until he became ill. At the

time of the hearing, Grandmother was 74 years old and suffered from dementia. Her physical

health was also declining, and she suffered recurring, uncontrolled seizures. Moreover, Mother,

who continued to test positive for amphetamine and methamphetamine, lived with Grandmother

and would continue to live in her home in the future.

{¶17} Given the undisputed evidence before the trial court, Father has failed to

demonstrate that the trial court lost its way in concluding that permanent custody was in the best

interest of B.M. Father’s first assignment of error is overruled.

FATHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT GRANTED PERMANENT CUSTODY TO [CSB] AND TERMINATED FATHER’S PARENTAL RIGHTS WHEN THE AGENCY DID NOT PROVIDE REASONABLE REUNIFICATION EFFORTS.

MOTHER’S ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED MOTHER’S PARENTAL RIGHTS AND PLACED THE CHILDREN IN THE PERMANENT CUSTODY OF CSB WHEN THE AGENCY DID NOT PROVIDE REASONABLE REUNIFICATION EFFORTS.

{¶18} Mother and Father argue that the juvenile court erred by awarding permanent

custody of the children to CSB because the agency failed to make reasonable reunification

efforts. This Court disagrees.

{¶19} R.C. 2151.419(A)(1) requires the juvenile court to determine whether the agency

has used reasonable reunification efforts at any hearing at which the court removes a child from

his home or continues the child’s removal from his home. It is well settled that “the statute

imposes no requirement for such a determination at the time of the permanent custody hearing

unless the agency has not established that reasonable efforts have been made prior to that 7

hearing.” (Internal quotations omitted.) In re L.R., 9th Dist. Summit Nos. 29266 and 29271,

2019-Ohio-2305, ¶ 14, quoting In re A.C.-B., 9th Dist. Summit Nos. 28330 and 28349, 2017-

Ohio-374, ¶ 22; see also In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41-43 (concluding

that a reasonable efforts determination is necessary at a permanent custody hearing only if the

agency has not demonstrated its use of reasonable efforts prior to that time).

{¶20} In this case, the juvenile court consistently found that CSB had used reasonable

efforts to prevent the children’s removal from their home. Beginning with the shelter care

hearing and continuing with adjudication, the initial disposition, and multiple review hearings,

the trial court made the requisite statutory reasonable efforts determinations. At no time did

Mother or Father challenge those findings.

{¶21} As the parents failed to object or move to set aside any reasonable efforts

determinations by the juvenile court, they have forfeited any challenge to the agency’s use of

reasonable efforts on appeal except for a claim of plain error. See In re L.R. at ¶ 18. To

demonstrate plain error, they must show not only trial court error, but also resulting prejudice. In

re T.G., 9th Dist. Summit No. 29658, 2020-Ohio-4802, ¶ 22. As they have not provided any

transcripts of the prior hearings after which the juvenile court consistently found CSB’s use of

reasonable efforts, this Court must presume regularity as to those reasonable efforts

determinations. See In re L.R. at ¶ 18. Accordingly, Mother and Father have failed to

demonstrate error by the juvenile court necessary to substantiate plain error.

{¶22} Notwithstanding the above, Mother argues that CSB could not have used

reasonable reunification efforts based on the agency’s alleged non-compliance with federal law.

She presents a form-over-substance argument which cannot prevail. She cites federal provisions

which she admits only implicate federal funding for state child welfare agencies. See, e.g., 42 8

U.S.C. 622, 670, and 671. No federal provisions cited by Mother provide for the negation of any

lawful order by a state court.

{¶23} Moreover, to the extent that the parents challenge the contents of the case plans

under state law, the juvenile court derives its sole authority in dependency, neglect, and abuse

cases from the comprehensive statutory scheme set out in R.C. Chapter 2151. E.g., In re A.P.,

9th Dist. Medina No. 12CA0022-M, 2012-Ohio-3873, ¶ 16. R.C. 2151.412 addresses case plans

and further directs the director of job and family services to adopt rules regarding the content,

format, development, implementation, and modification of case plans. Those rules are found in

various provisions of the Ohio Administrative Code.

{¶24} In this case, CSB filed an original and several amended case plans with objectives

for both parents in pursuit of reunification with the children. The parents did not object to any

case plan. Although they now argue that alleged deficiencies in the case plan require reversal,

they have neither argued nor demonstrated how they were prejudiced by any alleged deficiency.

For example, they argue that the maternal grandmother should have been included in the case

plan. They cite no authority, however, to support their underlying premise that a non-parent who

has never had legal custody of the children has any right to be included in the case plan. See In

re R.B.-B., 9th Dist. Summit Nos. 29817 and 29832, 2021-Ohio-818, ¶ 18.

{¶25} Because the parents have failed to demonstrate reversible error, Mother’s sole

assignment of error and Father’s second assignment of error are overruled.

III.

{¶26} Father’s and Mother’s assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed. 9

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

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

DONNA J. CARR FOR THE COURT

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

AMBER R. CROWE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

LEONARD BREIDING, Attorney at Law, for Appellee.

JOSEPH KERNAN, Guardian ad Litem.