In re K.M.W.

2021 Ohio 736

• Court: Ohio Court of Appeals
• Decided: March 12, 2021
• Docket: 28971
• Status: Published

Opinion

[Cite as In re K.M.W., 2021-Ohio-736.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

: IN RE: K.M.W., K.D.W., K.M.W. : : Appellate Case No. 28971 : : Trial Court Case Nos. 2016-4495 : 2016-4496 : 2018-0011 : : (Appeal from Common Pleas : Court – Juvenile Division)

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OPINION

Rendered on the 12th day of March, 2021.

MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Appellant, Mother

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HALL, J. -2-

{¶ 1} Mother appeals from the trial court’s judgment entry terminating her parental

rights and awarding appellee Montgomery County Children Services

(“MCCS”) permanent custody of three of her children.

{¶ 2} In her sole assignment of error, Mother contends the trial court erred in

finding that an award of permanent custody to MCCS was in the children’s best interest.

{¶ 3} The record reflects that the children at issue are twins born in 2016 and a

third child born in 2017. The twins were adjudicated dependent days after birth. The

younger child was adjudicated dependent less than two months after birth. At the time of

the permanent custody hearing, the legal father of the twins was serving a prison

sentence for physically abusing one of them. MCCS had little communication with him,

and he did not attempt to satisfy case-plan objectives. MCCS never located the father of

the younger child despite making efforts to do so.

{¶ 4} Since being adjudicated dependent, the three children have been in various

placements, including multiple foster placements and placement in the legal custody of a

third-party for a period of time before being returned to MCCS’s care. The agency moved

for permanent custody in late 2019 and amended the motion in early 2020. Mother filed

a competing motion for legal custody. The matter proceeded to a March 5, 2020 hearing

before a magistrate. Neither father appeared for the hearing. Mother also failed to appear

without explanation. At the time of the permanent-custody hearing, all three children were

thriving in foster-to-adopt placements.

{¶ 5} The evidence presented at the hearing established that Mother had failed to

complete her case-plan objectives and that she had not demonstrated an ability to care -3-

for the children consistently. A guardian ad litem recommended granting permanent

custody to MCCS as being in the best interest of the children, and the current foster

parents expressed a desire to adopt. Following the hearing, the magistrate issued a

decision granting permanent custody to MCCS. Mother filed objections. On November 9,

2020, the trial court overruled the objections and awarded MCCS permanent custody of

the three children.

{¶ 6} Mother’s sole argument on appeal is that an award of permanent custody to

MCCS was not in the best interest of the children. Her entire substantive argument is as

follows:

The [permanent-custody hearing] testimony revealed that Mother

completed a parenting class (Tr. 91). And Mother was appropriate at visits

(Tr. 91-92). Mother also attended counseling (Tr. 93). Mother appeared to

be taking her prescribed medications (Tr. 94-95). And Mother maintained

suitable housing (Tr. 96, 134).

The testimony also revealed that reunification with the mother was

the goal (Tr. 133). And there were no substance abuse concerns with

mother (Tr. 133-134). Mother was working (Tr. 137). And mother’s work

schedule conflicted with visiting the children (Tr. 141). Mother also had a

hard time visiting her children because it was hard for her to have to say

goodbye at the end of the visits (Tr. 139).

Based on the record in this case, the trial court erred by granting the

motion for permanent custody and the trial court’s decision should be

reversed. -4-

(Appellant’s brief at 2-3.)

{¶ 7} “R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency.” In re S.J., 2d

Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14. “The statute requires the court to

find, by clear and convincing evidence, that: (1) granting permanent custody of the child

to the agency is in the best interest of the child; and (2) either the child (a) cannot be

placed with either parent within a reasonable period of time or should not be placed with

either parent if any one of the factors in R.C. 2151.414(E) are present; (b) is abandoned;

(c) is orphaned and no relatives are able to take permanent custody of the child; or (d)

has been in the temporary custody of one or more public or private children services

agencies for twelve or more months of a consecutive twenty-two month period. R.C.

2151.414(B)(1).” Id.

{¶ 8} In determining a child's best interest, R.C. 2151.414(D) directs the trial court

to consider all relevant factors, including: “(1) the interaction and interrelationship of the

child with the child's parents, relatives, foster parents and any other person who may

significantly affect the child; (2) the wishes of the child; (3) the custodial history of the

child, including whether the child has 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; (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 to the agency; and (5) whether any of the factors in R.C.

2151.414(E)(7) through (11) are applicable.” Id. at ¶ 15.

{¶ 9} Here the trial court thoroughly reviewed and summarized the testimony -5-

presented at the permanent-custody hearing. (November 9, 2020 Order at 4-13.) It then

identified multiple factors to support its determination that Mother’s children could not and

should not be placed with either parent within a reasonable time. (Id. at 14-16.) The trial

court also found that the children had been in MCCS’s custody for 12 or more months of

a consecutive 22-month period. (Id. at 17.) On appeal, Mother does not challenge either

of these findings. As set forth above, she argues only that awarding MCCS permanent

custody was not in the best interest of the children.

{¶ 10} On the best-interest issue, the trial court made specific findings on each of

the relevant factors in R.C. 2151.414(D). (Id. at 16-19.) With regard to the interaction and

interrelationship of the children with others, the trial court found that Mother had failed to

visit any of the three children or maintain any contact with them for approximately seven

months prior to the hearing. The children also were well integrated into their foster families

and had established significant bonds with those families, each of which desired to adopt.

{¶ 11} After noting that the children were too young to express their own wishes,

the trial court proceeded to examine their custodial history. It reasoned:

[The twins] were removed from Mother’s care in March 2017 and

placed in the custody of non-relative [Ms. B.] Those children were removed

from Ms. [B] in September 2017 and placed in foster care. Those children

remained in foster care until placed in the legal custody of non-relative [L.P.]

in February 2019. [The third child] was removed from Mother shortly after

birth, and was placed in foster care in January 2018. All three children were

removed from Ms. [P.] in August 2019 and re-entered foster care. [The

twins] were placed with [K.D.] [The third child] was placed with [S.B.] -6-

The children have been in the temporary custody for twelve or more

months of a consecutive 22 month period at the time the Motion for

Permanent Custody was filed. [The third child] entered Agency custody on

January 2, 2018. Other than the approximately 6 months he was placed

with [L.P.], the child has been in Agency custody. Therefore, the child has

been in Agency custody for twelve or more months of a consecutive 22

month period. [The twins] entered Agency custody on September 12, 2017.

Other than the approximate 6 months they were placed with [L.P.], the

children have been in Agency custody. Therefore, the children have been

in Agency custody for twelve or more months of a consecutive 22 month

period.

(Id. at 17.)

{¶ 12} The trial court next addressed the children’s need for a legally secure

placement and whether it could be achieved without awarding MCCS permanent custody.

On that issue, the trial court found:

The children are in need of a legally secure placement, which cannot

be achieved without a grant of permanent custody to the Agency. The

Agency has a lengthy history with Mother dating back to 2013, which

includes other older siblings of these children that are not a part of this

present matter. Mother has another child * * * who is in the legal custody of

her father. (Tr. 127). Mother also has another child that is in the legal

custody of a relative. (Tr. 127). Mother does not have custody of any of her

children at this time. (Tr. 127). None of the children have ever returned to -7-

Mother’s custody since their initial removal from her care years prior.

Mother has failed to complete her case plan objectives. Mother has

maintained housing since January 2018, which has been deemed

appropriate by the Agency. Mother has had numerous different employers

throughout the life of the case. That objective remains ongoing.

Mother has failed to complete her significant case plan objectives

regarding mental health treatment. Mother did complete a parenting and

psychological evaluation with Dr. Lilley in 2018. At that time, it was noted

that progress was being made by Mother when she was active and

consistent with her treatment, and it was recommended that Mother

continue treatment and show stability if reunification was to be attempted.

However, Mother has failed to complete the treatment recommendations.

Mother has been sporadically engaged in mental health treatment

throughout the case, and did not appear to be actively engaged at the time

of the hearing. The Agency has been unable to verify any successful

completion of treatment for Mother.

Furthermore, Mother has failed to visit and maintain contact with the

children since August 2019. This is despite Mother supposedly adjusting

her work schedule to accommodate the visitation and the Agency providing

her bus passes to attend.

***

Various placement options were explored and discounted, mostly

due to conflicts those individuals had with Mother. The children were in the -8-

custody of [L.P.] for approximately 6 months from February 2019 until

August 2019. Ms. [P.] has not visited or maintained contact with the children

since early December 2019. Ms. [P.] apparently expressed to the

caseworker that she was no longer seeking custody of the children.

The children appear well cared for in their respective foster

placements. The children are bonded to their foster families and are

integrated into those families. [The twins] are in a foster-to-adopt placement

with [K.D.] [The third child] is in a foster-to-adopt placement with [S.B.].

(Id. at 17-19.)

{¶ 13} Finally, with regard to other applicable factors, the trial court found that

Mother effectively had abandoned the children by failing to visit or maintain any contact

with them from August 2019 through the date of the March 2020 hearing. (Id. at 19.)

{¶ 14} After addressing the best-interest factors, the trial court summarized its

findings as follows:

In accordance with R.C. 2151.414(E), there is clear and convincing

evidence that the children cannot and should not be placed with any of the

parents involved in a reasonable time. After weighing the factors under R.C.

2151.414(D), the Court finds that the State presented clear and convincing

evidence that a grant of permanent custody to the Agency is in the children’s

best interest. Mother and both fathers are not able to adequately care for

the children. Placement with Mother or either father is not possible within

the reasonably foreseeable future, as the parents have failed continuously

and repeatedly to substantially remedy the conditions causing the children -9-

to be placed outside the home. All parents have failed to make significant

progress on their case plan objectives. The Guardian Ad Litem

recommended permanent custody be granted to MCCS.

The children are in need of a legally secure placement, which can

only be achieved through a grant of permanent custody. The Court finds

there are no willing or able relatives available as a potential placement for

the children. The Agency’s permanency plan is adoption, and the children

are adoptable. Each child’s current foster home has been identified as a

potential adoptive placement.

(Id. at 19.)

{¶ 15} On appeal, Mother does not specifically address any of the statutory best-

interest factors. Nor does she attempt to rebut the trial court’s detailed analysis or findings.

In a perfunctory argument, Mother simply cites portions of the evidence favorable to her.

In particular, Mother notes that she (1) completed a parenting class, (2) acted

appropriately at visits, (3) attended counseling, (4) appeared to be taking her medication,

(5) maintained suitable housing, (6) had no substance-abuse problems, (7) was working,

(8) had scheduling conflicts at work that interfered with visitation, and (9) had a hard time

visiting her children because it was difficult to say goodbye.

{¶ 16} While the record contains testimony to support the foregoing assertions,

Mother’s brief is devoid of context. For example, although Mother generally did act

appropriately at visits, she failed to visit the children at all for approximately seven months

leading up to the permanent-custody hearing. Mother cites work scheduling conflicts as

the reason for her non-visitation, but the record does little to support her claim. Mother’s -10-

job at Burger King caused the purported conflict. She obtained that job around November

2019 but had not visited her children since August 2019. (Tr. at 152-153.) Moreover,

Mother claimed to have resolved the scheduling conflict in January 2020 but still failed to

visit the children between then and the March 2020 hearing. (Id. at 122, 140.) On one

occasion, Mother sought and obtained permission to arrive late for a visit but still failed to

show. (Id. at 141-142.) She blamed a lack of transportation despite having been given

bus tokens. (Id. at 142.) In addition to not visiting her children for months, Mother failed

to have any other form of contact with them between August 2019 and the date of the

permanent-custody hearing in March 2020. (Id. at 38, 122.) Notably, Mother subsequently

failed to appear for the hearing without providing any notice or explanation to her attorney

or the trial court. (Id. at 11.) We note too that Mother apparently had attended a parenting

class and counseling, as she asserts on appeal. But she failed to complete a required

mental-health assessment, which she had not even scheduled, rendering that portion of

her case plan incomplete. (Tr. 112-114.) She also still needed to follow through with

mental-health treatment, and her continued employment with Burger King remained

unverified. (Id. at 118-119, 136.)

{¶ 17} In short, the isolated facts Mother cites do not demonstrate error in the trial

court’s permanent-custody decision. We defer to that decision “if the record contains

competent, credible evidence by which the court could have formed a firm belief or

conviction that the essential statutory elements for a termination of parental rights have

been established.” In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Our

review of the record reveals competent, credible evidence from which the trial court could

have found by clear and convincing evidence that granting permanent custody of the -11-

children to MCCS was in their best interest.

{¶ 18} Mother’s assignment of error is overruled, and the judgment of the

Montgomery County Common Pleas Court, Juvenile Division, is affirmed.

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Elizabeth A. Ellis Robert Alan Brenner D.L-H. Kelly Schroeder Ryan Martin Lindsay Deck, GAL Hon. Helen Wallace