[Cite as In re M.W., 2011-Ohio-3886.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
IN RE: M.W., G.B., AND C.B. C.A. No. 11CA009975
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 02JC97421 09JC28257 09JC28258
DECISION AND JOURNAL ENTRY
Dated: August 8, 2011
WHITMORE, Judge.
{¶1} Appellant, Erin W. (“Mother”), appeals from a judgment of the Lorain County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to three of her
minor children and placed them in the permanent custody of Lorain County Children Services
(“LCCS”). This Court affirms.
I
{¶2} Mother is the natural mother of M.W., born June 11, 2002; G.B., born January 4,
2005; and C.B., born March 15, 2006. Although Mother’s fourth child was born during the
pendency of this case and she was pregnant with her fifth child at the time of the permanent
custody hearing, those children are not at issue in this appeal.
{¶3} Mother’s history with LCCS dates back to before M.W.’s birth. LCCS worked
with Mother during her pregnancy because she was a minor at the time. Although Mother had
planned to place her first child for adoption, she changed her mind after M.W. was born. 2
Because the maternal grandparents would not allow Mother to live in their home with a baby,
Mother did not have a home for M.W. Consequently, M.W. was removed from her custody,
adjudicated a dependent child, and placed in the temporary custody of LCCS. During the
pendency of that case, Mother and M.W. were placed in the same foster home for a period of
time, but were later placed in separate homes. LCCS eventually sought and obtained permanent
custody of M.W. This Court reversed that judgment on appeal, however, because the evidence
did not support the trial court’s finding under R.C. 2151.414(E) that M.W. could not be placed
with Mother within a reasonable time or should not be placed with her. In re M.W., 9th Dist. No.
03CA008342, 2004-Ohio-438.
{¶4} After this Court reversed the permanent custody decision, the trial court continued
M.W. in the temporary custody of LCCS, with the goal of reunifying her with Mother. After
Mother complied with the case plan goals, M.W. was returned to her custody in October 2004,
under an order of protective supervision by LCCS. Mother gave birth to her second child, G.B.,
on January 5, 2005. On September 30, 2005, Mother was granted legal custody of M.W. and
protective supervision by LCCS was terminated. Mother’s third child, C.B., was born the
following March.
{¶5} Several years later, in September 2009, Mother sought the help of the maternal
grandparents because she had no place to live. The maternal grandparents agreed to care for her
three children on a temporary basis while Mother tried to find housing. They would not allow
Mother in their home because Mother and her step-father have always had a poor relationship.
The grandparents would not allow Mother to visit the children in their home, but the
grandmother was willing to take them to meet with her elsewhere. Although the grandmother
repeatedly arranged visits between Mother and the children at other locations, after she 3
transported the children to the agreed location, Mother failed to show up. Mother never visited
the children during the six months that they lived with their grandparents.
{¶6} During October 2009, Mother’s fourth child was born several weeks pre-term.
The baby weighed only three pounds and required an extended hospital stay.1 LCCS again
became involved with Mother’s family because she tested positive for marijuana the day before
her fourth child’s birth and later came to visit him at the hospital with visible bruising on her
body, which she admitted was the result of domestic violence by the baby’s father. Despite
making arrangements with hospital staff to protect her from the baby’s father, Mother allowed
him to visit the baby at the hospital while she was also present in the room.
{¶7} LCCS was also concerned that Mother was again without a stable place to live.
Although the maternal grandparents were providing care for M.W., G.B., and C.B., they were
not willing or able to take in an additional, special-needs child or to provide a home for Mother’s
older children on a long-term basis. Consequently, on December 4, 2009, LCCS filed
dependency complaints for G.B. and C.B. and a motion for a further dispositional order
regarding M.W., seeking protective supervision of the three children.
{¶8} For the next several months, M.W., G.B., and C.B. continued to reside with their
grandparents. By March 2010, the grandparents were no longer willing to provide a home for
them. Although LCCS considered many other relatives for possible placement of the children, it
was unable to find another suitable relative who was willing and able to provide a home for
them. Consequently, LCCS placed M.W., G.B., and C.B. in a foster home, where they have
lived together ever since.
1 Although LCCS also assumed custody of that child, because he is not at issue in this case, the record includes few details about him. 4
{¶9} When the children were initially placed in foster care, Mother visited them on a
sporadic basis, attending approximately half of the scheduled visits. After June 11, 2010,
however, she did not visit the children or have any other contact with them. Mother would call
the caseworker and claim that she wanted to see the children, so the caseworker repeatedly
scheduled visits. After Mother missed several visits, the caseworker scheduled meetings to
discuss the case plan. Mother never attended the scheduled visits or appointments, however,
and often did not contact the caseworker until days or weeks later. This pattern continued
through November, 2010.
{¶10} After Mother repeatedly missed visits with the children, the caseworker would not
schedule another visit until they met to discuss Mother’s reasons for missing visits and her
failure to comply with the case plan. Mother had not been addressing the problems that had led
to the removal of her children from her custody: substance abuse, domestic violence, and lack of
stable housing and employment. She had not started drug treatment and had submitted only two
urine samples for drug screening, one of which tested positive for marijuana. Although Mother
claimed to have a job, she never provided LCCS with proof of her employment.
{¶11} After Mother failed to have any contact with the children for 98 days, LCCS
moved for permanent custody of M.W., G.B., and C.B. It alleged that the parents had abandoned
the children and that permanent custody was in the children’s best interests. Under the first
prong of the permanent custody test, LCCS alternatively alleged that the children could not be
returned to Mother’s custody within a reasonable time or should not be returned to her because
she had failed to substantially remedy the conditions that had caused the continued removal of
the children from her home. Following an evidentiary hearing, the trial court found that LCCS
established both of its alternate grounds for permanent custody. Consequently, it terminated 5
Mother’s parental rights to M.W., G.B., and C.B. and placed them in the permanent custody of
LCCS. Mother appeals and raises three assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY PURSUANT TO [R.C.] 2151.413(D)(1)[.]”
{¶12} Mother argues that LCCS failed to comply with R.C. 2151.413(D)(1) by filing the
permanent custody motion before the children had been in its temporary custody for a period of
12 months. We disagree.
{¶13} Although it is well settled that a children services agency must have temporary
custody of children for at least 12 months at the time its files a permanent custody motion under
the “12 of 22” provision of R.C. 2151.414(B)(1)(d), see In re C.W., 104 Ohio St.3d 163, 2004-
Ohio-6411, LCCS did not allege the “12 of 22” ground in its permanent custody motion.
Instead, it based the first prong of the permanent custody test on abandonment by the parents and
Mother’s failure to substantially remedy the conditions that led to the continued removal of the
children from her home. See R.C. 2151.414(B)(1)(b) and (E)(1).
{¶14} Given that LCCS did not base its permanent custody motion on the “12 of 22”
ground, Mother’s argument is without merit. Mother relies on an Ohio Supreme Court case that
construed a former version of R.C. 2151.413(A), which required the agency to have temporary
custody of a child for a continuous period of at least six months immediately before it filed for
permanent custody. See In re Hayes (1997), 79 Ohio St.3d 46, syllabus. As this Court explained
in In re G.B., 9th Dist. No. 22628, 2005-Ohio-4540, at ¶21, effective September 18, 1996, R.C.
2151.413 was amended to eliminate the six-month prerequisite for filing a motion for permanent 6
custody. “R.C. 2151.413(A) does not provide a time-bar to the filing of the motion for
permanent custody in this case.” Id.
{¶15} The legislative purpose in removing the six-month time-bar and later enacting the
“12 of 22” provisions in R.C. 2151.413 and 2151.414 was to require children services agencies
to more quickly find permanent homes for children who have been adjudicated abused,
neglected, or dependent to prevent them from languishing in the foster care system for years.
Under the current version of R.C. 2151.413(D)(1), cited by Mother, an agency is required to file
a motion for permanent custody after the children have been in its temporary custody for “12 of
22” months, unless the agency documents a compelling reason that permanent custody is not in
the children’s best interests, it has failed to make reasonable efforts when required to do so, or it
has already received permanent custody of the children. See R.C. 2151.413(D)(3).
“Prior to the H.B. 484 amendments, R.C. 2151.413 was a permissive statute, setting forth only situations in which an agency could file for permanent custody. See former R.C. 2151.413, Sub.H.B. No. 419, 146 Ohio Laws, Part III, 4660, 4679. After H.B. 484’s amendments, an agency must, except in limited circumstances, file for permanent custody once a child has been in the agency’s temporary custody for 12 or more months of a consecutive 22-month period. See R.C. 2151.413(D)(1).” (Emphasis sic.) In re C.W., at ¶20.
{¶16} Although R.C. 2151.413(D)(1) requires an agency to file for permanent custody
after 12 months of temporary custody if none of the enumerated conditions exist, R.C. 2151.413
does not prohibit it from filing sooner. Because Mother has failed to demonstrate that LCCS
violated R.C. 2151.413(D)(1) by filing the permanent custody motion before the children had
been in its temporary custody for 12 months, her first assignment of error is overruled. 7
Assignment of Error Number Two
“THE TRIAL COURT ERRED IN FINDING THAT THE CHILDREN WERE ABANDONED.”
{¶17} Mother argues that the trial court’s finding under R.C. 2151.414(B)(1)(b) that the
children had been abandoned by their parents was not supported by the evidence. We disagree.
{¶18} Before a juvenile court may 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 that: (1) the child is abandoned, orphaned, has been in the
temporary custody of the agency for at least 12 months of the prior 22 months, or that the child
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 child, 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.
{¶19} The trial court found that the first prong of the test was satisfied for all three
children because they had been abandoned by their parents and they could not be placed with
either parent within a reasonable time or should not be placed with them. See R.C.
2151.414(B)(1)(b) and (E). LCCS correctly notes that any error in the trial court’s finding of
abandonment did not prejudice Mother because it made an alternate finding that the children
could not be placed with Mother within a reasonable time or should not be placed with her.
Nevertheless, this Court will address the merits of Mother’s challenge to the trial court’s finding
of abandonment because it was supported by considerable evidence that demonstrates the
propriety of the trial court’s decision to terminate her parental rights. 8
{¶20} R.C. 2151.011(C) provides that, for purposes of R.C. Chapter 2151, a
presumption of abandonment arises when the children’s parents “have failed to visit or maintain
contact with the child[ren] for more than ninety days[.]” Mother does not challenge the trial
court’s finding that the children’s fathers had abandoned them by failing to have any contact
with them for more than one year. Mother also does not dispute that LCCS presented evidence
that she failed to have any contact with her children for much longer than 90 days. Her last visit
with the children was on June 11, 2010 and she had no contact with them through the date of the
hearing in February 2011. Mother attempts to justify her failure to visit the children by arguing
that LCCS prevented her from seeing them.
{¶21} Through her own testimony at the hearing, Mother attempted to explain why she
had no contact with her children for several months. She claimed that LCCS placed
unreasonable conditions on visitation and that it refused to help her with transportation. Her
testimony, however, was sharply disputed by the testimony of her two caseworkers and other
witnesses. Moreover, through cross-examination by LCCS and the guardian ad litem, Mother
essentially admitted that several of her explanations were not believable. The trial court
explicitly found that Mother was a difficult witness and that her credibility was questionable.
{¶22} A review of all of the evidence presented at the hearing reveals that LCCS went
above and beyond any obligation it had to facilitate Mother’s attendance at visitation. LCCS
adjusted the time and location of the visits to accommodate Mother and even offered to transport
the children to visit her at her home, after she moved to Cuyahoga County and told her
caseworker that she had difficulty attending visits in Lorain County. On the other hand,
evidence throughout the three-day hearing demonstrated that Mother refused to take even 9
minimal steps to cooperate with her caseworkers and service providers, but continued to blame
everyone but herself for her inability to see her children.
{¶23} For example, before it would allow the children to visit with Mother at her home
in Cuyahoga County, LCCS required one visit to the home to approve its safety. The caseworker
repeatedly scheduled appointments with Mother for home visits, but Mother was never there. In
fact, Mother had already made plans to move back to Lorain County at the time she made each
appointment for the caseworker to visit her home in Cuyahoga County, but she neglected to
inform her caseworker. At some point during the next several weeks, Mother moved back to
Lorain County. It is unclear when she actually moved, as she did not timely inform her
caseworker about her relocation and her testimony on that subject was sharply contradicted by
other evidence. After Mother moved back to Lorain County, she lived within walking distance
of the LCCS visitation center, yet she still did not meet with her caseworker or visit with the
children during that time.
{¶24} Another example of Mother shifting the blame for her failure to maintain contact
with her children involves her arrest and incarceration on shoplifting charges. Although she
suggested at the hearing that LCCS included the term of her involuntary incarceration within its
90-day abandonment calculation, the record reveals otherwise. Mother missed a scheduled visit
with her children on July 6, 2010, because she was arrested that day for shoplifting. She did not
call her caseworker to explain her absence, nor did she contact her during the next month.
Instead, on August 11, Mother left a voicemail message for the caseworker, stating that she could
not visit the children until the end of the month because she was required to report on August 17
to serve her 10-day jail sentence. Mother did not report in August to serve her jail time,
however, nor did she communicate with her caseworker for the next several weeks. 10
{¶25} On September 4, a Saturday, Mother left a voicemail message for the caseworker
that she wanted to see her children. Although the caseworker was eventually able to confirm two
different appointment times with Mother during the month of September, Mother failed to show
for either appointment. After missing each appointment, Mother called the caseworker over the
weekend and left a message for her. By the end of September, Mother had failed to have any
contact with her children for 111 days. Because she had not reported on August 17 to serve her
original jail sentence, she was required to serve 50 days in jail, beginning in early October, after
she had failed to visit her children for well over 90 days.
{¶26} The evidence presented at the hearing demonstrated that it was Mother, not
anyone else, who was responsible for Mother’s failure to visit her children or be reunified with
them. Throughout this case, Mother refused to work on the goals of her case plan or cooperate
with either of her caseworkers. She did not keep her caseworkers informed about changes in her
residence or work schedule, nor was she honest with them when she did communicate.
Moreover, Mother tended to call her caseworker over the weekend, leaving a voicemail message
for her, rather than communicating directly with her. Mother admitted that she did not have a
good relationship with her caseworker and often argued with her about her need to comply with
the case plan. She refused to submit urine samples for drug screening, participate in appropriate
substance abuse or domestic violence treatment, or meet with her caseworker about her failure to
work on the reunification goals of the case plan. At the hearing, Mother maintained the position
that she had a legal right to see her children and that “it doesn’t matter what [LCCS] want[s] me
to do.”
{¶27} The trial court’s finding of abandonment was supported by ample evidence. It
reasonably found that the testimony of Mother lacked credibility and did not serve to excuse her 11
failure to visit her children for more than 90 days. Mother’s second assignment of error is
overruled.
Assignment of Error Number Three
“IT WAS NOT IN THE BEST INTEREST OF THE MINOR CHILDREN FOR THE TRIAL COURT TO GRANT PERMANENT CUSTODY WHEN THERE WAS A STRONG PARENT/CHILD BOND[.]”
{¶28} Finally, Mother asserts that the trial court erred in finding that permanent custody
was in the children’s best interests. When determining whether a grant of permanent custody is
in the children’s best interests, the juvenile court must consider the following factors:
“(a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
“(b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child;
“(c) 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 ***;
“(d) 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[.]” R.C. 2151.414(D)(1)(a)-(d).2
{¶29} Mother focuses her argument solely on the first best interest factor. She maintains
that permanent custody was not in her children’s best interests because the evidence
demonstrated that there was a strong bond between Mother and her children. We disagree.
{¶30} Mother supports this argument with her own testimony that the children were
bonded with her and that, when she visited, they did not want her to leave. She also points to the
2 The factor set forth in R.C. 2151.414(D)(1)(e) is not relevant in this case. 12
testimony of the children’s counselors that each child was suffering from an adjustment disorder.
The evidence before the trial court demonstrated that, although Mother loved her children, they
had suffered emotional damage from her failure to consistently maintain contact with them.
Each child suffered from an adjustment disorder, a condition that had been exacerbated by
Mother’s failure to visit them on a regular basis. M.W. in particular, who had spent most of her
eight-year life moving in and out of Mother’s custody, suffered “extreme anxiety” about her
separation from Mother and became very distressed when Mother failed to show up for
scheduled visits. While the children were living with their grandparents, the grandmother told
the caseworker that she stopped telling them when she scheduled visits with Mother because they
became distraught when Mother repeatedly failed to come.
{¶31} During the 17 months before the hearing, Mother had failed to maintain contact
with her children for months at a time. She always blamed others for her failures and apparently
thought that she could just drop in and out of her children’s lives. Ultimately, after Mother had
missed over five months of visits while the children were in foster care, their counselors advised
LCCS that visits should not be resumed unless the permanent custody motion was denied
because the children had already suffered too much emotional damage from Mother repeatedly
coming in and out of their lives.
{¶32} On the other hand, the children had made significant progress in counseling and
while placed together in the foster home. They were closely bonded to each other and had
become assimilated into the foster family. For the first time in their lives, they were living in a
stable home environment. The children’s therapists and the guardian ad litem testified that the
foster parents provided a calm, loving, and structured home and made great efforts to work with 13
the counselors to help the children adjust. Each child had expressed a desire to stay with the
foster parents and the foster parents wanted to adopt all three of them.
{¶33} Although Mother does not contest the trial court’s findings on the remaining best
interest factors, the record fully supports the trial court’s conclusion on all the factors that
permanent custody was in the children’s best interests. The children had told others that they
wanted to stay with the foster parents and the guardian ad litem opined that permanent custody
was in their best interests. Their custodial history had involved many periods in and out of
Mother’s custody, and they were in need of a legally secure permanent placement. LCCS had
made extensive efforts to place the children together with relatives, but there were no suitable
relatives who were willing and able to provide a stable permanent home for them. Consequently,
the trial court reasonably concluded that a legally secure permanent placement could only be
achieved by granting permanent custody to LCCS. Because Mother has failed to demonstrate
error in the trial court’s best interest finding, her third assignment of error is overruled.
III
{¶34} Mothers’ assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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 Lorain, 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. 14
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.
BETH WHITMORE FOR THE COURT
CARR, P. J. MOORE, J. CONCUR
APPEARANCES:
BARBARA A. WEBBER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and AMY PRICE, Assistant Prosecuting Attorney, for Appellee.