[Cite as In re L.W., 2014-Ohio-4507.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
IN RE: L.W. :
: C.A. CASE NO. 26243
: T.C. NO. 2011-3477
: (Civil appeal from Common Pleas Court, JuvenileDivision) :
:
..........
OPINION
Rendered on the 10th day of October , 2014.
TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee Montgomery County Children Services
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Appellant Mother
CHRISTOPHER WESNER, Atty. Reg. No. 0082699, 22 N. Market Street, Suite C, P. O. Box 920, Troy, Ohio 45373 Attorney for Appellee Father
JEFFREY D. LIVINGSTON, Atty. Reg. No. 0062466, 120 W. Second Street, Suite 2000, Dayton, Ohio 45402 Guardian Ad Litem
DONOVAN, J.
{¶ 1} Petitioner-appellant S.W. (hereinafter “Mother”) appeals from a judgment of
the Montgomery County Court of Common Pleas, Juvenile Division, overruling her
objections and adopting the decision of the magistrate granting permanent custody of her
infant son, L.W., to Montgomery County Children Services (hereinafter “MCCS”). Mother
filed a timely notice of appeal with this Court on May 22, 2014.
{¶ 2} L.W. was born on April 28, 2011. On May 2, 2011, MCCS filed a
complaint alleging that L.W. was abused and dependent. Specifically, Mother and L.W.
tested positive for opiates at the time of the child’s birth.1 L.W. was found to exhibit signs
of opiate addiction. On the same day as the complaint was filed, the juvenile court granted
an ex parte order of interim temporary custody to MCCS. On June 20, 2011, L.W. was
adjudicated dependent in light of Mother’s continuing substance abuse issues and lack of
stable housing, and temporary custody was granted to MCCS. The juvenile court granted
MCCS a first extension of temporary custody on June 11, 2012. A second extension of
temporary custody was granted on December 24, 2012.
1 We note that the type of opiate found in Mother and L.W.’s systems was methadone that had been prescribed for and administered to her during the pregnancy. [Cite as In re L.W., 2014-Ohio-4507.] {¶ 3} On April 17, 2013, MCCS filed a motion for permanent custody of L.W. A
hearing was held before the magistrate on July 26, 2013, and September 25, 2013.2 At the
hearing, evidence was adduced that at the time L.W. was placed in the temporary custody of
MCCS, Mother had already given birth to four other children who were removed from her
care in light of ongoing issues with substance abuse and a lack of stable housing. Mother’s
four other children had been placed in the care of A.W., the paternal grandmother. Mother
was unable to reunify with the other children because of her ongoing substance abuse and
lack of stable housing.
{¶ 4} Kelli Hamilton, a caseworker at MCCS, testified that she had been involved
with Mother since 2006, and she has a history of drug abuse. Hamilton testified that
Mother had participated in several drug treatment programs, including CAM, Crisis Care,
Nova House, and Women’s Recovery, but had not successfully completed any of the
programs. Additional testimony was adduced that Mother lived with L.W.’s father who
also had ongoing substance abuse problems and a history of three convictions for drug
possession, the last as recent as May of 2009. Mother’s second caseworker, Erika Respress,
testified that MCCS was concerned that Father’s presence would be detrimental for L.W.
because of his destructive behavior and lack of stability. In the report filed by the Guardian
Ad Litem (GAL), Mother was quoted as stating that Father’s inability to stop using drugs
“triggers her ongoing use.”
{¶ 5} Hamilton testified that a case plan was developed for Mother with the
2 L.W.’s biological father was also present and represented by counsel at the hearing before the magistrate. Father filed objections to the magistrate’s decision that were ultimately overruled. Father, however, is not involved in the instant appeal. 4
primary goal of reunification with L.W. Mother’s case plan objectives were to complete
drug and alcohol treatment, maintain stable housing, maintain income, and attend classes to
learn about L.W.’s drug dependency and how to care for him. The evidence adduced at the
hearing established that while she was able to maintain stable housing and income, Mother
failed to complete the drug and alcohol treatment program at Project Cure. Mother also
failed to attend any of the classes addressing L.W.’s specialized medical care. Although she
had one three-month period where all of her urine screens were negative, Mother relapsed
several times and tested positive for opiates. In fact, Mother testified that she was taking
Vicodin for pain management even though she did not have a prescription.
{¶ 6} On November 5, 2013, the magistrate issued a decision granting permanent
custody to MCCS. Mother filed objections to the magistrate’s decision on November 19,
2013. On January 16, 2014, Mother filed supplemental objections to the magistrate’s
decision. The juvenile court subsequently overruled Mother’s objections and adopted the
magistrate’s decision in a judgment issued on April 25, 2014.
{¶ 7} It is from this judgment that Mother now appeals.
{¶ 8} Mother’s sole assignment of error is as follows:
{¶ 9} “THE TRIAL COURT ERRED IN AWARDING PERMANENT
CUSTODY BECAUSE THERE WAS NOT CLEAR AND CONVINCING EVIDENCE
THAT GRANTING PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE
CHILD.”
{¶ 10} In her sole assignment, Mother contends that the juvenile court erred when it
adopted the decision of the magistrate granting permanent custody of L.W. to MCCS. 5
Specifically, Mother argues that the evidence adduced at the hearing established that she had
substantially completed all of her case plan objectives and was “in the midst of ongoing
services” to treat her substance abuse problems.
{¶ 11} 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. 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. In re K.M., 8th Dist.
Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8, citing R.C. 2151.414(B)(1).
{¶ 12} R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (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 6
factors in R.C. 2151.414(E)(7) through (11) are applicable.
{¶ 13} Mother does not dispute that at the time of the hearing, L.W. had been in the
temporary custody of the Agency for over twelve months of a consecutive twenty-two month
period. L.W. has resided at the same foster placement since he was born and released from
the hospital. The evidence supports a finding that L.W. is bonded with his foster family.
The evidence also established that L.W. is adoptable, and that at the time of the hearing,
MCCS found a potential adoptive family for him.
{¶ 14} Although L.W. is too young to express his wishes with regard to custody, the
GAL indicated that the child’s best interests would be served by granting custody to MCCS.
Mother expresses the desire to retain custody of her son, but she failed to comply with the
terms of her case plan, which was designed to aid her in rectifying the problems that resulted
in MCCS’s intervention. Specifically, the record establishes that while Mother maintained
stable housing and income, she has a significant, ongoing substance abuse problem that she
failed to properly address. Mother admitted to taking Vicodin, a powerful pain medication,
without a prescription, and she relapsed into drug use numerous times during her treatment.
As a result, Mother has failed to complete drug and alcohol treatment at Project Cure.
Lastly, Mother failed to attend any of the educational classes designed to help her address
L.W.’s medical care which was necessary due to his opiate addiction at birth.
{¶ 15} A trial court's decision on termination “will not be overturned as against the
manifest weight of the evidence 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.” (Citations omitted) In 7
re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, “issues
relating to the credibility of witnesses and the weight to be given the evidence are primarily
for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22.
The “rationale of giving deference to the findings of the trial court rests with the knowledge
that the trial judge is best able to view the witnesses and observe their demeanor, gestures
and voice inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.
{¶ 16} Our review of the record, transcript, and exhibits establishes that there is
clear and convincing evidence which supports the juvenile court’s decision finding that the
statutory elements for termination under R.C. 2151.414(B) have been satisfied. Thus, the
juvenile court did not err when it adopted the decision of the magistrate awarding permanent
custody of L.W. to MCCS.
{¶ 17} Mother’s sole assignment of error is overruled.
{¶ 18} Mother’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
FAIN, J., concurs.
FROELICH, P.J., dissenting.
{¶ 19} I disagree that the record demonstrates, by clear and convincing
evidence, that granting permanent custody of L.W. to MCCS was in L.W.’s best interest as
that term is defined by the statutes. [Cite as In re L.W., 2014-Ohio-4507.] {¶ 20} In Ohio, a trial court is authorized to terminate parental rights and to grant
permanent custody to a children services agency in several enumerated circumstances. As
relevant to this appeal, these circumstances include a finding, by clear and convincing
evidence, that permanent custody is in a child’s best interest, coupled with a finding that the
child has been in the temporary custody of a public children services agency for twelve or
more months of a consecutive twenty-two-month period. R.C. 2151.414(B); In re S.J., 2d
Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga
No. 98545, 2012-Ohio-6010, ¶ 8. The burden of proof is on the children services agency.
In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14.
{¶ 21} R.C. 2151.414(D) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (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. These factors include the
parents’ criminal records, if any, including any offenses against children and other
mistreatment or abandonment of children, and the existence of any siblings with respect to
which the parents’ parental rights have been involuntarily terminated.
{¶ 22} The burden of clear and convincing evidence “is that measure or degree of 9
proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of
such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 10,
citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus.
{¶ 23} Extensive testimony was presented at the permanent custody hearings
regarding “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.” R.C.
2151.414(D)(1). L.W. was removed at birth after he and Mother tested positive for
Methadone, which Mother had been prescribed by Project Cure during her pregnancy. At
the time L.W. was placed in the temporary custody of MCCS, Mother had already given
birth to four other children. Legal custody of Mother’s four older children had been given
to the children’s paternal grandmother, with one year of protective supervision by MCCS.
(Protective supervision expired on April 27, 2011, the day before L.W. was born.) L.W.’s
parents remained involved with and frequently see their older children.
{¶ 24} Kelli Hamilton, the family’s caseworker at the time of L.W.’s removal,
testified that L.W.’s parents had visitation with him twice per week for three hours a day.
Hamilton stated that the visits “went very well” and that “[t]here was a definite bond and
attachment between [L.W.] and both parents.” Hamilton testified that there were “never
any noted concerns with parenting, basic parenting skills. They were always very
appropriate with [L.W.]. Foster mom never had any concerns after visits.” Other than the 10
30 days that Mother was receiving residential treatment at Project Cure, Mother consistently
visited with L.W. Many times, L.W.’s siblings would also participate in visitation. Erika
Respress, the family’s caseworker since September 2012, stated that Mother continued to
consistently visit with L.W., that L.W. had bonded with his parents and siblings, and that no
concerns were raised during those visits. The Guardian Ad Litem (“GAL”) also recognized
the bond between L.W. and his parents and siblings.
{¶ 25} Respress testified that L.W. was an “adoptable child” and that if MCCS
obtained permanent custody, L.W. would be transferred to the adoption unit and placed in a
potential adopters’ home as a foster-to-adopt placement. The potential adoptive family that
MCCS had identified was not the foster family, but friends of the foster mother. There was
no testimony about whether L.W. had ever interacted with the potential foster family.
Respress indicated that L.W. would be “cut off” from his parents and siblings if he were
adopted.
{¶ 26} Turning to the custodial history of L.W. and his need for a legally secure
permanent placement, R.C. 2151.414(D)(3) & (4), L.W. had been in temporary custody
since shortly after his birth, and the juvenile court could not grant another extension of
temporary custody. MCCS had not identified any relatives who are willing and able to take
L.W. I agree that this factor weighs in favor of granting permanent custody to MCCS.
{¶ 27} The evidence indicated that MCCS had ongoing concerns about Father’s
drug use. L.W.’s parents were married and lived together throughout their involvement
with MCCS. Mother testified at the September hearing that Father had moved out due to
the agency’s concerns about his presence in the house. Respress testified that she did not 11
believe Mother’s testimony, but there was no evidence to contradict it. It was undisputed
that Mother has appropriate housing and income for L.W.
{¶ 28} Repress testified that Mother was supposed to take special classes to learn
about L.W.’s “dietary needs [and] possible developmental or physical issues that he would
have because of that drug addiction” (emphasis added), and she did not do so. The case
plan provided that “[p]arents will learn about medical care necessitated by the baby’s drug
addiction and be able to meet their baby’s medical needs during visitation.” However,
Respress testified that L.W. does not live in a treatment foster home and that he has “no
special needs.” There was no testimony that L.W. has any “developmental or physical
issues” or that, since L.W.’s methadone withdrawal in the hospital after his birth, any
additional medical care was necessitated by his positive methadone test at birth. Mother’s
failure to take classes has minimal weight.
{¶ 29} At the time of the permanent custody hearing, L.W. was two years old and
was too young to express his wishes. R.C. 2151.414(D)(2). The July 2013 report filed by
the Guardian Ad Litem identified drug use as the major issue in the case. He stated that
Mother “was consistently testing positive for opiates in 2013 (as well as Methadone which is
to be expected). One [of] the progress notes [from Project Cure] dated May 21, 2013 has
Mother reporting that ‘her husband has just been unsuccessfully dosed out of the clinic and
triggers her ongoing use.’” The GAL stated to the trial court at the September 2013 hearing
that this was a “sad case” and that the older children know L.W. The GAL reiterated that
the “main issue during that whole time has been a drug issue, and there have been periods of
times where both parents have maintained somewhat sobriety, but there’s always been 12
relapses.” He indicated that he did not believe that L.W. could be reunified with his parents
in a reasonable amount of time, and he recommended permanent custody to MCCS.
{¶ 30} The crux of the magistrate’s and trial court’s decisions was that Mother had
a significant substance abuse problem that has not been addressed, and that this problem was
severe enough to interfere with her ability to care for L.W. MCCS emphasized, and the
juvenile court found, that Mother had been involved with MCCS since 2006, that Mother
had several prior attempts at sobriety, and that she had suffered relapses on several
occasions. MCCS presented testimony of Mother’s drug abuse history prior to L.W.’s birth.
{¶ 31} The record reflects that MCCS became involved with Mother in 2006 due
to her addiction to heroin. Although the record states that Mother repeatedly tested positive
for “opiates,” any positive tests since L.W.’s birth appear to be for Methadone and/or
Vicodin. MCCS refers to Mother’s repeated relapses, but there was no evidence at the
hearing that Mother has tested positive for heroin or other illegal drugs since L.W.’s birth.
{¶ 32} The evidence at the hearings regarding Mother’s drug use since L.W.’s birth
did not substantiate the trial court’s conclusion that Mother continues to have a substantial
drug abuse problem that affects her ability to parent L.W. According to the testimony,
approximately two months before L.W.’s birth, Mother began outpatient substance abuse
treatment at Project Cure, which specifically addresses opioid dependency, and she was
prescribed methadone. According to Frank Wylie, an outpatient substance abuse counselor
at Project Cure, Mother entered Project Cure’s residential program in the beginning of
September 2012. Wylie provided individual and group counseling sessions for her.
Mother had no issues while she was in residential treatment. Mother has random drug 13
screens at least once per month as an active client; while Mother worked with Wylie, all of
her screens were negative. The residential program is a 30-day program; Mother successfully
completed the program and was transitioned to outpatient treatment.
{¶ 33} Outpatient treatment at Project Cure has four levels that must be completed
before a client is successfully discharged. After the residential treatment, Mother was
placed in level two. Wylie testified that Mother was “at least level two if not level three” at
the time of the July 2013 hearing. Wylie stated that the program was “designed to be about
two and half years” from “start to finish.” Mother had not been out of the residential
program long enough to be at level four. Hamilton further stated that Mother was in
residential treatment and was no longer testing positive when Hamilton stopped being her
caseworker.
{¶ 34} Respress testified that Mother has not used any illegal substances, but she
admitted in April 2013 and June 2013 to taking Vicodin, without a prescription, for back
pain. Respress stated that Mother has a ruptured disk. Mother was continuing to receive
substance abuse treatment at Project Cure. Respress stated that she has been able to
randomly drug screen Mother, and Mother has not “tested positive for anything that’s caused
concern.” A laboratory report for Mother, dated April 2013, indicated that Mother tested
positive for methadone; the results for other substances were negative. Mother testified that
the only thing she “had touched in over three years” was Vicodin, which she takes to treat
pain. There was no evidence that Mother’s use of Vicodin for back pain, albeit without a
prescription, impairs her ability to parent or her relationship with her son.
{¶ 35} As the Guardian Ad Litem opined, this is a “sad case”; there are most often 14
no clear-cut winners and losers in a permanent custody situation. Further, there may be
facts and circumstances known to the investigators and case workers that never made their
way to the record. However, based on the testimony presented at the permanent custody
hearings, the exhibits presented at the hearings, and the Guardian Ad Litem report, I would
conclude that the evidence does not support the termination of Mother’s parental rights and
the granting of permanent custody of L.W. to MCCS on the ground that permanent custody
was in L.W.’s best interest.
Copies mailed to:
Tiffany C. Allen Lucas W. Wilder Christopher Wesner Jeffrey D. Livingston Hon. Anthony Capizzi