In re Y.W.

2017 Ohio 4218

• Court: Ohio Court of Appeals
• Decided: June 12, 2017
• Docket: 1-16-60
• Status: Published

Opinion

[Cite as In re Y.W., 2017-Ohio-4218.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

IN RE: CASE NO. 1-16-60 Y.W.,

ALLEGED DEPENDENT CHILD. OPINION [YANICA WRIGHT - APPELLANT]

Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2016 JG 33775

Judgment Affirmed

Date of Decision: June 12, 2017

APPEARANCES:

Angela M. Elliott for Appellant

Mariah M. Cunningham for Appellee Case No. 1-16-60

PRESTON, P.J.

{¶1} Appellant, Yanica Wright (“Yanica”), appeals the November 30, 2016

decision of the Allen County Court of Common Pleas, Juvenile Division, granting

permanent custody of her minor child, Y.W., to the Allen County Children Services

Board (the “Agency”). For the reasons that follow, we affirm.

{¶2} Y.W., born in April 2015, is the minor child of Yanica and Derek

Jones.1 (Doc. No. 3). On July 26, 2016, the Agency notified the trial court that it

intended to file a complaint on July 27, 2016 alleging that Y.W. is an abused,

neglected, or dependent child. (Doc. No. 1).2 That same day, the trial court held a

shelter-care hearing and granted the Agency temporary custody of Y.W. (Doc. No.

22). On July 27, 2016, the Agency filed a complaint alleging that Y.W. is a

dependent child under R.C. 2151.04(D). (Doc. No. 4). In its complaint, the Agency

requested that the trial court award it permanent custody of Y.W. under R.C.

2151.414(E)(6) and (11). (Id.).

{¶3} On August 15, 2016, the Agency filed a motion requesting the trial court

to waive the Agency’s requirement to make reasonable efforts to return Y.W. to

1 Although Yanica identified “Derek Jones” as Y.W.’s father, she is unsure of the spelling of his name or his whereabouts. (Doc. No. 3). Y.W.’s father did not appear in this case. 2 According to the Agency, “Y.W. was removed from the custody of [Yanica on May 2, 2016] through an ex-parte order issued by [the trial court] and subsequently placed in the Shelter Care of the [Agency].” (Appellee’s Brief at 6). “Prior to the adjudicatory hearing in that case, [Yanica] gave birth to her eighth child.” (Id.). As such, the Agency “dismissed the case that began with the Ex-Parte Order being issued on May 2, 2016 in order to begin a new case regarding Y.W. at the same time that the case began in the trial court involving [Yanica’s] eighth child.” (Id.).

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Yanica. (Doc. No. 20). In that motion, the Agency argued that the reasonable-

efforts requirement could be waived under R.C. 2151.419(A)(2)(e) because

Yanica’s parental rights were involuntarily terminated as to her other six children.3

(Id.). After a hearing on September 28, 2016, the trial court on October 5, 2016

concluded that Y.W. is a dependent child and granted the Agency’s reasonable-

efforts motion. (Doc. No. 32).

{¶4} On August 24, 2016, the Agency submitted its case plan to the trial

court. (Doc. No. 25).

{¶5} On August 1, 2016, the trial court appointed Y.W. a Guardian Ad Litem

(“GAL”). (Doc. No. 30). The GAL filed her report on September 22, 2016

recommending that Y.W. remain in the temporary custody of the Agency. (Id.).

The GAL filed a “Modification/Change Status Report” on November 2, 2016

recommending that the trial court grant the Agency permanent custody of Y.W.

(Doc. No. 37).

{¶6} After a permanent-custody hearing on November 9, 2016, the trial court

on November 30, 2016 granted the Agency permanent custody of Y.W. (Doc. No.

47).

{¶7} On December 23, 2016, Yanica filed her notice of appeal. (Doc. No.

48). She raises one assignment of error for our review.

3 Yanica’s eighth child, born after Y.W., “is currently in the temporary custody of the [Agency] by agreement of the parties as to that case.” (Appellee’s Brief at 6).

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Assignment of Error

The Trial Court Erred In Terminating Mother’s Parental Rights.

{¶8} In her assignment of error, Yanica argues that the trial court erred in

granting permanent custody of Y.W. to the Agency after erroneously concluding

that R.C. 2151.414(E)(11) mandates a finding of permanent custody. She further

argues that the trial court “erroneously found that a finding of permanent custody

was mandated and necessary based solely on past rather than present conditions.”

(Appellant’s Brief at 16). In other words, Yanica argues that the trial court erred in

granting permanent custody of Y.W. to the Agency simply because her parental

rights were previously terminated as to her other children in 2010. We disagree.

{¶9} The right to raise one’s child is a basic and essential right. In re Murray,

52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct.

1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923).

“Parents have a ‘fundamental liberty interest’ in the care, custody, and management

of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388

(1982). However, the rights and interests of a natural parent are not absolute. In re

Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These rights may be

terminated under appropriate circumstances and when the trial court has met all due

process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and

5-02-54, 2003-Ohio-1269, ¶ 6.

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{¶10} When considering a motion for permanent custody of a child, the trial

court must comply with the statutory requirements set forth in R.C. 2151.414. See

In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. R.C.

2151.414(B)(1) establishes a two-part test for courts to apply when determining

whether to grant a motion for permanent custody: (1) the trial court must find that

one of the circumstances in R.C. 2151.414(B)(1)(a)-(e) applies, and (2) the trial

court must find that permanent custody is in the best interest of the child. In re S.G.,

9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10. See also In re Brown, 98

Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides, in relevant

part, that a trial court

may grant permanent custody of a child to a movant if the court

determines at the hearing held pursuant to division (A) of this section,

by clear and convincing evidence, that it is in the best interest of the

child to grant permanent custody of the child to the agency that filed

the motion for permanent custody and that any of the following apply:

(a) The child is not abandoned or orphaned, has not 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, * * * and the child cannot be

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placed with either of the child’s parents within a reasonable time or

should not be placed with the child’s parents.

R.C. 2151.414(B)(1)(a). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f one

or more of the factors enumerated in R.C. 2151.414(E) is found to be present by

clear and convincing evidence, the trial court shall find that the child cannot be

placed with the parents within a reasonable period of time or should not be placed

with the parents.’” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13,

quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 54, citing In re

Goodwin, 3d Dist. Shelby No. 17-08-12, 2008-Ohio-5399, ¶ 23.

{¶11} “If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies, the trial court must determine, by clear and convincing

evidence, whether granting the agency permanent custody of the child is in the

child’s best interest.” (Emphasis sic.) In re A.F. at ¶ 55, citing In re D.M., 3d Dist.

Hancock Nos. 5-09-12, 5-09-13, and 5-09-14, 2009-Ohio-4112, ¶ 33 and In re K.H.,

3d Dist. Hancock No. 5-10-06, 2010-Ohio-3801, ¶ 30. “In determining whether

granting the agency permanent custody is in the best interest of the child, R.C.

2151.414(D)(1) provides:

[T]he court shall consider all relevant factors, including, but not

limited to, the following:

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(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this

section apply in relation to the parents and child.

R.C. 2151.414(D)(1)(a)-(e).

{¶12} “Clear and convincing evidence is more than a preponderance of the

evidence but not as much evidence as required to establish guilt beyond a reasonable

doubt as in a criminal case; rather, it is evidence which provides the trier of fact with

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a firm belief or conviction as to the facts sought to be established.” In re H.M.K.,

3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 42, citing In re

Meyer, 98 Ohio App.3d 189, 195 (3d Dist.1994), citing Cincinnati Bar Assn. v.

Massengale, 58 Ohio St.3d 121, 122 (1991). “Upon review, an appellate court

‘must examine the record and determine if the trier of fact had sufficient evidence

before it to satisfy this burden of proof.’” Id. at ¶ 43, quoting In re Meyer at 195,

citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985). “A reviewing

court will not reverse a trial court’s determination unless it is not supported by clear

and convincing evidence.” Id., citing In re Meyer at 195, citing In re Adoption of

Holcomb at 368 and In re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). See also

In re A.E., 3d Dist. Seneca Nos. 13-14-14 and 13-14-15, 2014-Ohio-4540, ¶ 28 (“A

court’s decision to terminate parental rights will not be overturned as against the

manifest weight of the evidence if the record contains competent, credible evidence

by which a court can determine by clear and convincing evidence that the essential

statutory elements for a termination of parental rights have been established.”),

citing In re B.G.W., 10th Dist. Franklin No. 08AP-081, 2008-Ohio-3693 and In re

Nevaeh J., 6th Dist. Lucas No. L-06-1093, 2006-Ohio-6628, ¶ 17.

{¶13} Yanika challenges only the trial court’s reliance on R.C.

2151.414(E)(11) to grant permanent custody of Y.W. to the Agency. Under the

permanent-custody-statutory framework, the trial court may consider R.C.

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2151.414(E)(11) when determining whether a child cannot be placed with either of

the child’s parents within a reasonable time or should not be placed with the child’s

parents and when making its best-interest determination. See R.C. 2151.414(B)(1);

R.C. 2151.414(D)(1)(e); In re A.F., 2012-Ohio-1137, at ¶ 54, citing In re Goodwin,

2008-Ohio-5399, at ¶ 23.4

{¶14} R.C. 2151.414(E)(11) provides:

The parent has had parental rights involuntarily terminated with

respect to a sibling of the child pursuant to this section or section

2151.353 or 2151.415 of the Revised Code, or under an existing or

former law of this state, any other state, or the United States that is

substantially equivalent to those sections, and the parent has failed to

provide clear and convincing evidence to prove that, notwithstanding

the prior termination, the parent can provide a legally secure

permanent placement and adequate care for the health, welfare, and

safety of the child.

Under R.C. 2151.414(E)(11), “the burden is on the parent to provide clear and

convincing evidence to prove that he or she can provide a legally secure permanent

placement and adequate care for the health, welfare, and safety of the child.” In re

4 It is not disputed that Y.W. was not in the Agency’s temporary custody for twelve or more months of a consecutive twenty-two month period. R.C. 2151.414(B)(1)(a). (See Appellant’s Brief at 4-5).

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J.H., 8th Dist. Cuyahoga No. 105055, 2017-Ohio-940, ¶ 22, citing In re E.A., 9th

Dist. Medina No. 12CA0059-M, 2012-Ohio-5925, ¶ 14.

{¶15} Notwithstanding Yanica’s argument on appeal, the evidence in the

record demonstrates the trial court did not automatically terminate Yanica’s parental

rights as to Y.W. because her parental rights were previously terminated as to her

other children or grant the Agency permanent custody of Y.W. without considering

whether Yanica met her statutorily required burden of proof. Compare In re E.F.,

4th Dist. Athens No. 16CA22, 2017-Ohio-133, ¶ 20. As an initial matter, we note

that the trial court did not rely only on R.C. 2151.414(E)(11) in granting permanent

custody of Y.W. to the Agency. In determining whether Y.W. cannot be placed

with Yanica within a reasonable time or should not be placed Yanica, the trial court

concluded that an independent ground under R.C. 2151.414(E)(6)—Yanica “was

convicted of domestic violence involving another of her children, a sibling of

[Y.W.], in 2010”—applied, which is unchallenged by Yanica. (See Nov. 9, 2016

Tr., at 41-42, 57-58). As such, because the record clearly and convincingly supports

that alternative finding under the first prong of the permanent-custody test, and

Yanica did not challenge that finding, the trial court did not err in concluding that

Y.W. cannot be placed with Yanica within a reasonable time and should not be

placed with Yanica. See In re E.M., 9th Dist. Wayne No. 15CA0033, 2015-Ohio-

5316, ¶ 12.

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{¶16} Moreover, even absent that alternative finding, the trial court

appropriately considered whether R.C. 2151.414(E)(11) applied. Because Yanica

did not dispute that her parental rights were involuntarily terminated as to her other

children in 2010, the trial court considered whether Yanica met her statutorily

required burden of proof. (See Nov. 9, 2016 Tr. at 37-39); (Doc. No. 47). The trial

court concluded that Yanica did not provide clear and convincing evidence that,

notwithstanding the prior termination, she can provide a legally secure permanent

placement and adequate care for the health, welfare, and safety of Y.W. Although

the trial court commended Yanica for “acknowledging the issues that have led to

the earlier termination of her parental rights and for now attempting to appropriately

address those concerns,” the trial court concluded that was not enough to satisfy

Yanica’s burden of proving that she can provide an adequate and permanent home

for Y.W. (Doc. No. 47). Indeed, the trial court found that “[a]lthough she attended

parenting classes as required under her earlier case plans, the caseworker testified

that she had never been able to consistently apply what she had learned to her own

children.” (Id.); (Oct. 19, 2016 Tr. at 11, 22). The trial court acknowledged the

testimony of the Agency’s caseworkers that Yanica’s interaction with Y.W. during

supervised visits diminished after “the first hour.” (Doc. No. 47); (Oct. 19, 2016

Tr. at 17); (Nov. 9, 2016 Tr. at 33-35). Further, the trial court found that “it does

not appear that [Yanica] seriously sought treatment for her mental health issues until

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the [Agency] again came into her life in July of 2016. At that point, the treatment

was to address depression and anxiety disorder, not to address the concerns which

led to the removal of her children.” (Id.); (Id. at 21-22); (Id. at 12-20). Regarding

Y.W., the trial court found that “she was not achieving her expected developmental

targets regarding her gross motor skills” when the Agency “became involved” with

Y.W. but “[a]fter just six weeks in the foster home, she had reached those

developmental targets.” (Doc. No. 47); (Oct. 19, 2016 Tr. at 16-17). The trial court

also found that “[t]he nature and the source of [Yanica’s] income is not clear”

because “[n]either she nor her boyfriend are currently employed.” (Id.); (Id. at 20);

(Nov. 9, 2016 Tr. at 27-29, 46-47). For those reasons, the record supports the trial

court’s conclusion that Yanica did not prove by clear and convincing evidence that

she can provide an adequate and permanent home for Y.W. Accordingly, in

addition to R.C. 2151.414(E)(6), the trial court did not err in concluding that R.C.

2151.414(E)(11) applied to conclude that Y.W. cannot be placed with Yanica within

a reasonable time and should not be placed with Yanica.

{¶17} Turning to the best-interest determination, while the trial court

considered the application of R.C. 2151.414(E)(11) under R.C. 2151.414(D)(1)(e),

the trial court considered other relevant best-interest factors. Indeed, regarding R.C.

2151.414(D)(1)(a), Y.W. has a “good” relationship with her foster parents and “is

well-adjusted in their home and has bonded with both the foster parents and her six

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siblings (all children of [Yanica]) who have also been placed in that home.” (Doc.

No. 47); (Oct. 19, 2016 Tr. at 12). Y.W.’s foster parents expressed interest in

adopting her. (Oct. 19, 2016 Tr. at 12). Regarding R.C. 2151.414(D)(1)(b), the trial

court concluded that Y.W. “is too young to express her wishes, but her Court

Appointed Special Advocate recommends placement of [Y.W.] in the permanent

custody of the [Agency].” (Doc. Nos. 37, 47). Regarding R.C. 2151.414(D)(1)(c),

Y.W. “spent the first 15 months of her life in the custody of [Yanica] and has now

been in the care of the [Agency] for approximately 4 months.” (Doc. No. 47).

Regarding R.C. 2151.414(D)(1)(d), the trial court concluded that Y.W. “is in need

of a legally secure permanent placement which can be achieved by an award of

permanent custody to the [Agency].” (Id.). Neither Y.W.’s father nor any other

relative came forward expressing “that they could provide [a] legally secure

permanent placement for [Y.W.]” (Oct. 19, 2016 Tr. at 11). Regarding R.C.

2151.414(D)(1)(e), the trial court found R.C. 2151.414(E)(11) applied. (Doc. No.

47). As we addressed above, Yanica did not dispute that her parental rights were

involuntarily terminated as to her other children and there is clear and convincing

evidence supporting the trial court’s conclusion that Yanica did not satisfy her

burden of proving that, notwithstanding the prior termination, she can provide an

adequate and permanent home for Y.W. Finally, although it is not an enumerated

factor under R.C. 2151.414(D)(1), because that statute commands the trial court to

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consider all relevant factors, the trial court also considered Yanica’s prior domestic-

violence conviction in its best-interest analysis. (Doc. No. 47). (See Nov. 9, 2016

Tr., at 41-42, 57-58). Because the record supports those findings, the trial court did

not err in concluding that granting permanent custody of Y.W. to the Agency is in

Y.W.’s best interest.

{¶18} For these reasons, we conclude that clear and convincing evidence

supports the trial court’s determinations under R.C. 2151.414 that it was required to

make and did make in granting the Agency’s motion for permanent custody.

Therefore, the trial court did not err in granting the Agency’s motion for permanent

custody.

{¶19} Yanica’s assignment of error is overruled.

{¶20} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

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