[Cite as In re D.W., 2011-Ohio-5778.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: D.W. C.A. No. 26011 J.W. C.W. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN09-11-0905 DN09-11-0906 DN09-11-0907
DECISION AND JOURNAL ENTRY
Dated: November 9, 2011
BELFANCE, Presiding Judge.
{¶1} Appellant, Diana W. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her three minor
children and placed them in the permanent custody of Summit County Children Services Board
(“CSB”). For the reasons that follow, this Court affirms.
I.
{¶2} Mother is the natural mother of D.W., born December 23, 1999; J.W., born March
28, 2005; and C.W., born April 6, 2007. The fathers of the children are not parties to this
appeal. Mother and her children have had involvement with children services agencies and the
police dating back to August 2001 because, on several occasions, Mother’s young children were
found away from home without any adult supervision. Two of those incidents resulted in Mother
being convicted of child endangering. 2
{¶3} Mother has a long history of mental health problems, for which she has been
hospitalized repeatedly, but has not maintained consistent treatment. The record does not fully
detail the most recent event that led to the complaint in this case, but Mother testified that she
had spent the day combining her psychiatric medications with alcohol and was behaving
erratically. Although she had recently been released from the hospital and was taking psychiatric
medication, Mother was not receiving ongoing mental health treatment and was feeling suicidal.
Mother admittedly set fire to the house where she had been living with the children, and then left
in her car with the children. Mother had told her sister that she was going to kill herself and,
apparently after leaving the children alone in a motel room, became involved in a high-speed car
chase with her sister. During the chase, Mother was apprehended by police and arrested and the
children were found alone at the motel. The children were immediately removed from Mother’s
custody and she has not seen them since.
{¶4} Mother was later charged with offenses that included aggravated arson and three
counts of child endangering. Although Mother’s mental competence was initially at issue, after
treatment and regulation of her psychiatric medications, she was ultimately found competent to
stand trial. Mother later entered pleas of guilty to attempted aggravated arson, vandalism, and
child endangering and was sentenced to a total term of four years’ incarceration.
{¶5} D.W., J.W., and C.W. were placed with their maternal aunt, but she later decided
that she could not provide a home for all three children. The children were placed together with
foster parents, and CSB eventually moved for permanent custody. Following a hearing on the
motion, the trial court terminated Mother’s parental rights and placed the children in the
permanent custody of CSB. 3
{¶6} Mother filed a timely appeal. In lieu of a merit brief, her appellate counsel filed a
brief in accordance with Anders v. California (1967), 386 U.S. 738, in which he asserted that
there were no meritorious issues to raise on Mother’s behalf and that an appeal would be
frivolous. Counsel moved this Court to accept the Anders Brief in lieu of a merit brief and to
permit him to withdraw from the case.
II.
Possible Issue For Review
“THE TRIAL COURT ERRED IN FINDING THAT A GRANT OF PERMANENT CUSTODY IN THE BEST INTEREST OF D.W., J.W., AND C.W. WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
{¶7} Mother’s counsel presented one potential issue for review but concluded that it
has no merit. After a thorough review of the evidence before the trial court, this Court agrees.
{¶8} Before a juvenile court can terminate parental rights and award to a proper
moving agency permanent custody of a child, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the children are abandoned, orphaned, have been
in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the
children cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent
custody to the agency is in the best interest of the children, based on an analysis under R.C.
2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S. (1996),
75 Ohio St.3d 95, 99.
{¶9} The trial court found that the first prong of the test was satisfied because all three
children had been in the temporary custody of CSB for more than 12 of the prior 22 months and 4
that finding is fully supported by the record. Thus, the only potential issue is a challenge to the
trial court’s best interest finding.
{¶10} When determining whether a grant of permanent custody is in the children’s best
interests, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D): the interaction and interrelationships of the children, the wishes of the
children, the custodial history of the children, and the children’s need for permanence in their
lives. See In re R.G., 9th Dist. Nos. 24834 & 24850, 2009-Ohio-6284, at ¶11.
{¶11} Since their removal from Mother’s custody on November 21, 2009, the children
had not seen Mother due to her incarceration and a counselor’s concern that the oldest child,
D.W., might be further traumatized by direct contact with Mother. D.W. had witnessed Mother
pouring lighter fluid in the house before she started the fire. Although Mother had put all three
children in her car before she started the fire, D.W. got out of the car and came into the house to
try to stop her. D.W. had been traumatized by the fire, in which she lost everything she owned,
including her pet fish. D.W. also felt helpless and responsible for being unable to stop Mother
from starting the fire. D.W.’s counselor explained that D.W. had long played the role of
caretaker for her younger siblings and Mother, as Mother had struggled with mental health
problems and alcohol addiction for many years.
{¶12} D.W. had been diagnosed with post traumatic stress disorder and was
experiencing nightmares, flashbacks, and numerous behavioral problems. D.W. told her
counselor that Mother’s mental health and drinking problems dated back to when J.W. was born
in 2005. During counseling, D.W. wrote a letter to Mother, in which she explained that she will
always love Mother, but that the foster parents “treat us right * * * like what you used to do a
long time ago.” The counselor believed that D.W. recognized that she could no longer live with 5
Mother and needed to move on. Another counselor testified that D.W. will continue to need
ongoing counseling for at least another year and that it was important for her to live in a stable
environment with a caregiver who provided consistency and firm boundaries.
{¶13} The caseworker testified that none of the children had asked to see Mother since
they were removed from her custody.
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[Cite as In re D.W., 2011-Ohio-5778.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: D.W. C.A. No. 26011 J.W. C.W. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN09-11-0905 DN09-11-0906 DN09-11-0907
DECISION AND JOURNAL ENTRY
Dated: November 9, 2011
BELFANCE, Presiding Judge.
{¶1} Appellant, Diana W. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her three minor
children and placed them in the permanent custody of Summit County Children Services Board
(“CSB”). For the reasons that follow, this Court affirms.
I.
{¶2} Mother is the natural mother of D.W., born December 23, 1999; J.W., born March
28, 2005; and C.W., born April 6, 2007. The fathers of the children are not parties to this
appeal. Mother and her children have had involvement with children services agencies and the
police dating back to August 2001 because, on several occasions, Mother’s young children were
found away from home without any adult supervision. Two of those incidents resulted in Mother
being convicted of child endangering. 2
{¶3} Mother has a long history of mental health problems, for which she has been
hospitalized repeatedly, but has not maintained consistent treatment. The record does not fully
detail the most recent event that led to the complaint in this case, but Mother testified that she
had spent the day combining her psychiatric medications with alcohol and was behaving
erratically. Although she had recently been released from the hospital and was taking psychiatric
medication, Mother was not receiving ongoing mental health treatment and was feeling suicidal.
Mother admittedly set fire to the house where she had been living with the children, and then left
in her car with the children. Mother had told her sister that she was going to kill herself and,
apparently after leaving the children alone in a motel room, became involved in a high-speed car
chase with her sister. During the chase, Mother was apprehended by police and arrested and the
children were found alone at the motel. The children were immediately removed from Mother’s
custody and she has not seen them since.
{¶4} Mother was later charged with offenses that included aggravated arson and three
counts of child endangering. Although Mother’s mental competence was initially at issue, after
treatment and regulation of her psychiatric medications, she was ultimately found competent to
stand trial. Mother later entered pleas of guilty to attempted aggravated arson, vandalism, and
child endangering and was sentenced to a total term of four years’ incarceration.
{¶5} D.W., J.W., and C.W. were placed with their maternal aunt, but she later decided
that she could not provide a home for all three children. The children were placed together with
foster parents, and CSB eventually moved for permanent custody. Following a hearing on the
motion, the trial court terminated Mother’s parental rights and placed the children in the
permanent custody of CSB. 3
{¶6} Mother filed a timely appeal. In lieu of a merit brief, her appellate counsel filed a
brief in accordance with Anders v. California (1967), 386 U.S. 738, in which he asserted that
there were no meritorious issues to raise on Mother’s behalf and that an appeal would be
frivolous. Counsel moved this Court to accept the Anders Brief in lieu of a merit brief and to
permit him to withdraw from the case.
II.
Possible Issue For Review
“THE TRIAL COURT ERRED IN FINDING THAT A GRANT OF PERMANENT CUSTODY IN THE BEST INTEREST OF D.W., J.W., AND C.W. WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
{¶7} Mother’s counsel presented one potential issue for review but concluded that it
has no merit. After a thorough review of the evidence before the trial court, this Court agrees.
{¶8} Before a juvenile court can terminate parental rights and award to a proper
moving agency permanent custody of a child, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the children are abandoned, orphaned, have been
in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the
children cannot be placed with either parent within a reasonable time or should not be placed
with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent
custody to the agency is in the best interest of the children, based on an analysis under R.C.
2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re William S. (1996),
75 Ohio St.3d 95, 99.
{¶9} The trial court found that the first prong of the test was satisfied because all three
children had been in the temporary custody of CSB for more than 12 of the prior 22 months and 4
that finding is fully supported by the record. Thus, the only potential issue is a challenge to the
trial court’s best interest finding.
{¶10} When determining whether a grant of permanent custody is in the children’s best
interests, the juvenile court must consider all the relevant factors, including those enumerated in
R.C. 2151.414(D): the interaction and interrelationships of the children, the wishes of the
children, the custodial history of the children, and the children’s need for permanence in their
lives. See In re R.G., 9th Dist. Nos. 24834 & 24850, 2009-Ohio-6284, at ¶11.
{¶11} Since their removal from Mother’s custody on November 21, 2009, the children
had not seen Mother due to her incarceration and a counselor’s concern that the oldest child,
D.W., might be further traumatized by direct contact with Mother. D.W. had witnessed Mother
pouring lighter fluid in the house before she started the fire. Although Mother had put all three
children in her car before she started the fire, D.W. got out of the car and came into the house to
try to stop her. D.W. had been traumatized by the fire, in which she lost everything she owned,
including her pet fish. D.W. also felt helpless and responsible for being unable to stop Mother
from starting the fire. D.W.’s counselor explained that D.W. had long played the role of
caretaker for her younger siblings and Mother, as Mother had struggled with mental health
problems and alcohol addiction for many years.
{¶12} D.W. had been diagnosed with post traumatic stress disorder and was
experiencing nightmares, flashbacks, and numerous behavioral problems. D.W. told her
counselor that Mother’s mental health and drinking problems dated back to when J.W. was born
in 2005. During counseling, D.W. wrote a letter to Mother, in which she explained that she will
always love Mother, but that the foster parents “treat us right * * * like what you used to do a
long time ago.” The counselor believed that D.W. recognized that she could no longer live with 5
Mother and needed to move on. Another counselor testified that D.W. will continue to need
ongoing counseling for at least another year and that it was important for her to live in a stable
environment with a caregiver who provided consistency and firm boundaries.
{¶13} The caseworker testified that none of the children had asked to see Mother since
they were removed from her custody. They had been placed together throughout the case,
however, and remained strongly bonded to each other. The children were happy and well
adjusted in their current placement, where their foster parents provided them with a secure,
stable, and structured home. The children had expressed a desire to stay in the foster home and
the foster parents were interested in adopting all three children.
{¶14} At the time of the hearing, the children’s custodial history included a period of
eighteen months living outside Mother’s custody and having virtually no contact with her.
During that time, the children had adjusted well to living in a stable environment. Mother, on the
other hand, was incarcerated and would remain incarcerated for the next several years. It was
unclear whether her mental health problems had stabilized, as she had been diagnosed with
various mental illnesses over the years, had been in and out of counseling, and had taken a
variety of medications to try to regulate her moods. Mother had been diagnosed most recently
with bipolar disorder and, although she testified that her current medication was regulating her
mood swings, she was not engaged in any mental health counseling at that time. It was also
unclear whether Mother would continue with mental health treatment after her release from
prison.
{¶15} The children were in need of a legally secure permanent placement and Mother
could not provide a home for them at the time of the hearing or in the foreseeable future. The
children’s fathers had abandoned them and there were no suitable relatives available to take 6
long-term custody of them. They were currently living in a suitable, stable home with the foster
parents, who were willing to adopt all three children if the trial court terminated Mother’s
parental rights. The trial court reasonably concluded that a legally secure permanent placement
for the children could be achieved only through a grant of permanent custody to CSB.
{¶16} The trial court’s conclusion that permanent custody was in the best interests of
D.W., J.W., and C.W. was fully supported by the evidence presented at the hearing. The
possible issue for review presented by Mother’s counsel lacks merit. Moreover, this Court has
carefully reviewed the entire record and concludes that the evidence clearly and convincingly
supports the judgment of the trial court. As part of that review, the questions that Mother raised
in a letter submitted to this Court of whether she received effective assistance of trial counsel and
reasonable reunification efforts by CSB have been considered. That review has failed to reveal
any issues that support a reversal of the judgment of the trial court.
{¶17} Mother’s appeal is without merit and frivolous under Anders v. California (1967),
386 U.S. 738. The request by Mother’s attorney for permission to withdraw is granted.
III.
{¶18} Mother’s appeal is without merit. The judgment of the Summit County Court of
Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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. 7
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(E). 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 Appellant.
EVE V. BELFANCE FOR THE COURT
WHITMORE, J. MOORE, J. CONCUR
APPEARANCES:
BRENDON J. KOHRS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.