In re K.W.

925 N.E.2d 181, 185 Ohio App. 3d 629
CourtOhio Court of Appeals
DecidedJanuary 5, 2010
DocketNo. 23407
StatusPublished
Cited by8 cases

This text of 925 N.E.2d 181 (In re K.W.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re K.W., 925 N.E.2d 181, 185 Ohio App. 3d 629 (Ohio Ct. App. 2010).

Opinion

Froelich, Judge.

{¶ 1} Mother appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which found that it was in her daughter, KW.’s, best interest to grant permanent custody to Montgomery County Children Services (“MCCS”). The trial court had previously concluded that MCCS was not required to make reasonable efforts to reunify Mother and K.W. because three of Mother’s other children had been involuntarily placed in the permanent custody of the agency.

{¶ 2} R.C. 2151.419(A)(2)(e), by which MCCS was relieved of its usual burden to make reasonable efforts at reunification because Mother had other children who had been involuntarily placed in the permanent custody of the agency, is not unconstitutional on its face or as applied to Mother. MCCS was still required to prove, by clear and convincing evidence, that permanent custody was in the best interest of K.W., and the state did present sufficient evidence to support this finding. Mother consented, through her attorney, to the dependency findings in 2007; moreover, she waived her argument that this finding was improper by failing to file timely objections and to appeal from that decision, which was a final, appealable order. For these reasons, the judgment awarding permanent custody to MCCS will be affirmed.

I

{¶ 3} K.W. was born on February 27, 2007. On March 2, 2007, MCCS filed a complaint alleging that K.W. was a neglected and dependent child due to Mother’s mental-health issues and substance abuse, including her use of crack cocaine during her pregnancy, and Father’s drug use and lack of independent housing. The complaint also alleged that Mother had three other children who had been previously adjudicated dependent by the trial court and had been placed in the permanent custody of MCCS in 2006. On March 7, 2007, the complaint was amended to include an additional allegation that K.W. was neglected and dependent because Mother had not received adequate prenatal care. The magistrate granted interim temporary custody to MCCS.

{¶ 4} On May 9, 2007, the trial court conducted a hearing on the allegation of dependency and neglect and on temporary custody of K.W. KW.’s father attended the hearing with his attorney. KW.’s mother had received notice of the hearing, but did not' attend; her attorney was present. The attorneys for both parents stated that the parents would agree to a finding of dependency if the state dropped the allegation of neglect. Father also agreed to place K.W. in the temporary custody of MCCS. Mother’s attorney stated that based on her conversations with Mother, she (the attorney) could agree to the dependency [633]*633finding but could not agree to temporary custody on Mother’s behalf. Thus, the state presented evidence related only to Mother on the issue of temporary custody.

{¶ 5} The state’s evidence at the hearing established that no appropriate relatives had been identified who could care for K.W. and that a case plan had been developed. With respect to Mother, the case-plan objectives were to obtain income and housing; to get mental health, drug, alcohol, and parenting assessments; to follow the recommendations that resulted from the assessments; and to maintain visitation with K.W. By the hearing on temporary custody, Mother had completed some of the assessments and had completed some applications for housing and employment, but she had not fully addressed the mental-health, substance-abuse, housing, and income issues. The guardian ad litem recommended that the court grant temporary custody to MCCS. On March 14, 2007, the magistrate awarded temporary custody of K.W. to MCCS. Mother did not file objections to the magistrate’s decision.

{¶ 6} On October 15, 2007, the state filed a motion, pursuant to R.C. 2151.419(A)(2), to bypass the statutory requirement that MCCS make “reasonable efforts to return this child to the child’s home with her Mother,” on the basis that Mother had had her parental rights involuntarily terminated with respect to one or more other children. On October 31, 2007, the state filed a motion for permanent custody of K.W.

{¶ 7} On December 4, 2007, the magistrate held a hearing on the motion to bypass reunification efforts. Mother and Father were present with counsel. The state presented the caseworker’s testimony that Mother had three other children who had been involuntarily removed from her custody. The same caseworker presented the judgment entries granting permanent custody in those three cases. Mother’s only response to the state’s evidence was to argue that the state had not met its burden to show that Mother was the same person involved in the prior cases. The magistrate in K.W.’s case had presided over the siblings’ cases and, when presented with the judgment entries, the magistrate indicated that he remembered Mother and those cases. At the end of the hearing, the magistrate ordered Mother and Father to be tested for drugs. Both tested positive for cocaine and marijuana.

{¶ 8} On January 31, 2008, the magistrate filed a decision granting the motion to bypass reunification efforts, which concluded that pursuant to R.C. 2151.011(C) and 2151.419(A)(2)(e), MCCS was “not required to make reasonable efforts to eliminate the continued removal of the child from the child’s home with the parent and return the child to the home.” The trial court adopted the decision the same day. Neither Mother nor Father filed objections.

[634]*634{¶ 9} On February 21, 2008, the magistrate held a hearing on the motion for permanent custody of K.W., at which both mother and father were present with counsel. The state presented evidence that Mother had failed to make significant progress on any of her case-plan objectives. On March 12, 2008, the magistrate granted the motion for permanent custody. Mother subsequently filed a series of objections, which challenged the magistrate’s decisions finding that K.W. was dependent, granting temporary custody to MCCS, allowing MCCS to bypass reasonable efforts to return K.W., and granting permanent custody of K.W. to MCCS.

{¶ 10} The trial court concluded that Mother’s objections to the decisions finding K.W. to be dependent, awarding temporary custody to MCCS, and permitting MCCS to bypass reunification efforts were untimely. It also rejected Mother’s argument that R.C. 2151.419(A)(2), which provides for the bypass, is unconstitutional. The court further found that every aspect of Mother’s case plan was incomplete and that K.W. could not be returned to her Mother within a reasonable period of time and that Mother had shown a lack of commitment toward K.W. Thus, the court adopted the magistrate’s decision and found, by clear and convincing evidence, that K.W.’s best interest would be served by granting permanent custody to MCCS.

{¶ 11} Mother raises one assignment of error on appeal. Father is not a party to this appeal.

II

{¶ 12} The assignment of error, which incorporates three distinct arguments, states:

{¶ 13} “The trial court erred to the prejudice of appellant mother in violation of R.C. 2151.414 and the U.S. and Ohio constitutions when it terminated mother’s parental rights by granting permanent custody to Montgomery County Children’s Services less than one year after her daughter’s birth.”

{¶ 14} The United States Supreme Court has recognized that parents’ interest in the care, custody, and control of their children “is perhaps the oldest of the fundamental liberty interests recognized” by the court. Troxel v. Granville

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Cite This Page — Counsel Stack

Bluebook (online)
925 N.E.2d 181, 185 Ohio App. 3d 629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kw-ohioctapp-2010.