In re M.W. , 2020 Ohio 5199 ( 2020 )

[Cite as In re M.W., 2020-Ohio-5199.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
M.W., : No. 19AP-769
(C.P.C. No. 16JU-650)
:
[L.W., (REGULAR CALENDAR)
:
Appellant.]
:
D E C I S I O N
Rendered on November 5, 2020
On brief: Steven Thomas D. Potts, for appellee Franklin
County Children Services.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BROWN, J.
{¶ 1} Appellant, L.W. ("mother"), appeals from a judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting the
motion of appellee, Franklin County Children Services ("FCCS" or "agency"), for permanent
custody of mother's child, M.W. For the reasons which follow, we affirm.
{¶ 2} M.W. was born November 30, 2006. FCCS filed a complaint on January 15,
2016, under case No. 16JU-650, alleging M.W. was a dependent child. M.W. was already in
the temporary custody of FCCS at the time FCCS filed the January 15, 2016 complaint
pursuant to an order issued in case No. 15JU-12748.
No. 19AP-769 2
{¶ 3} FCCS obtained temporary custody of M.W. in case No. 15JU-12748 following
an October 17, 2015 incident where mother left M.W. in the care of mother's adult daughter,
Ma.W. During the October 17, 2015 incident, M.W. grabbed a knife, ran out of her older
sister's house, and asked neighbors to contact police. Ma.W. informed officers that she
could not handle M.W. and that she was unable to contact mother. FCCS took custody of
M.W. and placed her in a foster home. At the foster home, M.W. climbed a 30-foot cable
tower and threatened to jump off. When an officer tried to rescue her she tried to push the
officer off the tower. Following the cable tower incident, FCCS placed M.W. at Belmont
Pines, a residential treatment facility located in Youngstown, Ohio. FCCS filed case No.
16JU-650 as case No. 15JU-12748 was about to expire by operation of law.
{¶ 4} On March 24, 2016, the trial court adjudicated M.W. dependent, ordered
temporary custody to FCCS, and adopted a case plan. The case plan required mother to
complete alcohol and other drug ("AOD") assessment and follow any recommendations,
participate in regular drug screens, participate in parenting classes, cooperate with a parent
mentor, participate in family counseling with M.W., keep in regular contact with M.W.,
maintain stable housing, and meet M.W.'s basic, medical, and educational needs. M.W. was
discharged from Belmont Pines in May 2016 and placed in a foster home in Lithopolis,
Ohio.
{¶ 5} On October 18, 2016, the trial court granted FCCS an extension of the
temporary custody order. On April 14, 2017, the trial court granted FCCS a second and final
extension of the temporary custody order. FCCS filed a motion for permanent custody on
September 11, 2017.
{¶ 6} In September 2017, FCCS placed M.W. in a foster home located in
Pickerington, Ohio. M.W. was taken to the hospital in October 2017 after she reported
feeling upset and suicidal. M.W. was released from the hospital to a respite foster home,
and eventually returned to the Pickerington foster home.
{¶ 7} Throughout the first year and one-half of the case, mother failed to maintain
stable housing. However, in August 2017 mother began renting an apartment located on
East 26th Avenue in Columbus, Ohio. M.W. began having overnight visits with mother in
the home. In a March 7, 2018 report, the guardian ad litem ("GAL") recommended
No. 19AP-769 3
returning M.W. to mother's custody under FCCS protective supervision, as mother had
maintained stable housing for several months.
{¶ 8} In June 2018, FCCS opened a case concerning M.W.'s brother, R.W., born
March 2, 2005. R.W.'s agency case commenced following a June 8, 2018 incident where
mother left R.W. in the care of Ma.W., R.W. obtained Ma.W.'s gun, and began pointing the
gun "at himself and threatening to pull the trigger, stating suicidal intentions." (Nov. 15,
2018 Semiannual Adm. Review ("SAR") at 4.) The gun incident was ultimately
unsubstantiated, and R.W. continued to reside with mother under a temporary order of
protective supervision. R.W.'s case plan required mother and R.W. to complete mental
health assessments and referred R.W. to counseling services.
{¶ 9} In October 2018, mother lost her housing on East 26th Avenue and mother
and R.W. began living in a homeless shelter. On October 10, 2018, FCCS removed M.W.
from her Pickerington foster home and placed M.W. at Buckeye Ranch, a residential
treatment facility located in Columbus. At Buckeye Ranch, M.W. was diagnosed with Post-
Traumatic Stress Disorder unspecified and Attention Deficit Hyperactivity Disorder
combined type; M.W. also demonstrated depressive symptoms. M.W. takes six different
medications to address her conditions.
{¶ 10} On January 7, 2019, the GAL filed a report recommending the court grant
FCCS's motion for permanent custody as mother failed to engage in mental health services
or maintain stable housing. As M.W. clearly expressed her wish to return to her mother,
the court appointed an attorney to represent M.W.
{¶ 11} A two-day trial on the motion for permanent custody commenced on
October 3, 2019. Mother appeared at the trial and testified. The court also heard testimony
from the FCCS caseworker, M.W.'s clinician at Buckeye Ranch, and the GAL. The court
interviewed M.W. on the record in the presence of the GAL and M.W.'s attorney. On
October 9, 2019, the trial court issued a decision and judgment entry granting FCCS's
motion for permanent custody and divesting mother of her parental rights.
{¶ 12} Mother appeals the judgment of the trial court, presenting the following
assignment of error for our review:
The juvenile court's judgment granting permanent court
commitment of the minor child to Franklin County Children
Services is against the manifest weight of the evidence.
No. 19AP-769 4
{¶ 13} Parents have a constitutionally protected fundamental interest in the care,
custody, and management of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000); In
re Murray, 52 Ohio St.3d 155, 157 (1990). These rights, however, are not absolute, and a
parent's natural rights are always subject to the ultimate welfare of the child. In re
Cunningham, 59 Ohio St.2d 100, 106 (1979). Thus, in certain circumstances, the state may
terminate the parental rights of natural parents when it is in the best interest of the child.
In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist.
No. 00 CA 2694 (Sept. 25, 2000).
{¶ 14} R.C. 2151.414 governs the termination of parental rights in Ohio. In re K.H.,
119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42. Pursuant to R.C. 2151.414(B)(1), a trial court
may grant permanent custody of a child to an agency if the court determines, by clear and
convincing evidence, that: (1) it is in the best interest of the child to grant permanent
custody of the child to the agency, and (2) one of the situations set forth in R.C.
2151.414(B)(1)(a) through (e) applies. Clear and convincing evidence is more than a mere
preponderance of the evidence; it concerns that "measure or degree of proof which 'will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.' " K.H. at ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus.
{¶ 15} A trial court's determination in a permanent custody case will not be reversed
on appeal unless it is against the manifest weight of the evidence. In re Andy-Jones, 10th
Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28. "Judgments are not against the manifest
weight of the evidence when all material elements are supported by competent, credible
evidence." In re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8. Accordingly,
"[p]ermanent custody judgments which are supported by some competent, credible
evidence going to all essential elements of a case will not be reversed as being against the
manifest weight of the evidence." In re A.L., 10th Dist. No. 15AP-1040, 2016-Ohio-3189,
¶ 18, citing In re Brofford, 83 Ohio App.3d 869, 876-77 (10th Dist.1992).
{¶ 16} "[I]n determining whether a judgment is against the manifest weight of the
evidence, the reviewing court is guided by the presumption that the findings of the trial
court are correct." In re R.L., 10th Dist. No. 07AP-36, 2007-Ohio-3553, ¶ 8, citing Brofford.
Thus, "[i]n reviewing a judgment granting permanent custody to FCCS, an appellate court
No. 19AP-769 5
'must make every reasonable presumption in favor of the judgment and the trial court's
findings of facts.' " J.T. at ¶ 8, quoting In re P.G., 10th Dist. No. 11AP-574, 2012-Ohio-469,
¶ 37. " '[I]f the evidence is susceptible of more than one construction, we must give it that
interpretation which is consistent with the verdict and judgment, most favorable to
sustaining the [juvenile] court's verdict and judgment.' " In re Brooks, 10th Dist. No. 04AP-
164, 2004-Ohio-3887, ¶ 59, quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988).
{¶ 17} The trial court found clear and convincing evidence established the
circumstance described in R.C. 2151.414(B)(1)(d). R.C. 2151.414(B)(1)(d) describes the
situation where 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." Mother does not dispute the trial court's
conclusion that M.W. was in the temporary custody of FCCS for more than 12 months out
of a consecutive 22-month period.
{¶ 18} Once the trial court determines that one of the circumstances in R.C.
2151.414(B)(1) applies, the court must then determine whether a grant of permanent
custody is in the best interest of the child. R.C. 2151.414(B)(1). R.C. 2151.414(D)(1) provides
that, in determining the best interest of the child, the court must consider all relevant
factors, including but not limited to, the following: (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 12 or more months of a consecutive 22-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, and (e)
whether any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 apply in relation to the
parents and child.
{¶ 19} The trial court reviewed the R.C. 2151.414(D)(1) best interest factors and
found clear and convincing evidence demonstrated granting FCCS's request for permanent
No. 19AP-769 6
custody was in M.W.'s best interest. Mother contests the trial court's findings under the
best interest factors.
{¶ 20} Mother initially asserts the evidence concerning the R.C. 2151.414(D)(1)(a)
best interest factor, regarding M.W.'s interactions and interrelationships with significant
people in her life, weighed against granting FCCS permanent custody. The trial court found
that mother and M.W. were "deeply bonded," and that their interactions were appropriate.
(Decision at 9.) The court noted that both the FCCS caseworker and the GAL testified to the
bond between mother and M.W. The evidence supported these findings.
{¶ 21} However, "resolution of [R.C. 2151.414(D)(1)(a)] is not limited to merely the
bond between child and parent." In re K.R., 10th Dist. No. 18AP-633, 2019-Ohio-2192, ¶ 81.
"Courts have considered the consistency of a party's visitation with a child when resolving
the R.C. 2151.414(D)(1)(a) factor." Id. at ¶ 82, citing In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, ¶ 59. The trial court noted that, although mother testified she visited
M.W. consistently, the FCCS caseworker believed mother's visits were "fewer than they
could have been, especially with the very open policy at Buckeye Ranch where [M.W.] ha[d]
been living for almost a year." (Decision at 9.)
{¶ 22} The Buckeye Ranch allowed visitations every day, from 2:30 to 8:30 p.m. on
weekdays and from 9:00 a.m. to 8:00 p.m. on weekends. The Buckeye Ranch clinician
testified that mother had visited M.W. "between one and four times a month" throughout
the year M.W. lived at Buckeye Ranch. (Oct. 4, 2019 Tr. at 49.) A May 13, 2019
administrative review of the case noted that, while mother had been visiting M.W. at
Buckeye Ranch consistently, mother "recently declined the taxi that was sent to her to get
to visits, and since that time, her visits have declined." (May 13, 2019 SAR at 3.) The review
stated that mother "visiting inconsistently" caused M.W. "to be anxious and worried."
(May 13, 2019 SAR at 3.) The court also noted that mother occasionally brought too many
people to visits, resulting in less interaction time between mother and M.W. The record
supported the trial court's observation. (Oct. 3, 2019 Tr. at 134-35.)
{¶ 23} Mother asserts the trial court failed to discuss the emotional harm M.W.
would experience as a result of having her relationships with her mother and brother
severed. However, as the trial court specifically addressed the deep bond between mother
and M.W., the trial court would have weighed the emotional harm of severing that bond in
No. 19AP-769 7
assessing M.W.'s best interest. The trial court noted that mother and M.W. discussed R.W.
during their visits, and that M.W. told the court she "misse[d] her brother and would like
to live with him and help him with his homework." (Decision at 9-10.) Thus, the trial court
also weighed M.W. and R.W.'s relationship in arriving at its determination. The court found
no other evidence of significant relationships in M.W.'s life.
{¶ 24} Thus, in analyzing the evidence relevant to the R.C. 2151.414(D)(1)(a) best
interest factor, the court recognized the significant relationship between mother and M.W.,
and M.W.'s relationship with R.W., but also noted mother's less than frequent visits with
M.W. at Buckeye Ranch. Mother's somewhat inconsistent visits at Buckeye Ranch allowed
the court to weigh the R.C. 2151.414(D)(1)(a) factor slightly in favor of granting FCCS
permanent custody.
{¶ 25} Mother asserts the evidence pertinent to the R.C. 2151.414(D)(1)(b) best
interest factor, concerning the wishes of the child, weighed against granting FCCS
permanent custody. The trial court noted that M.W. "clearly expressed her wish to return
to mother" during the in camera interview. (Decision at 10.) The court also noted that,
contrary to M.W.'s wishes, the GAL recommended granting the motion for permanent
custody.
{¶ 26} Mother contends that M.W.'s wishes under the R.C. 2151.414(D)(1)(b) factor
should weigh heavier against permanent custody, due to M.W.'s age and bond with mother.
R.C. 2151.414(D)(1), however, does not give any one factor "greater weight than the others."
Schaefer at ¶ 56. Rather, the statute "requires a weighing of all relevant factors." Id. at ¶ 64.
See In re D.B., 2d Dist. No. 2005-CA-33, 2006-Ohio-479, ¶ 42 (noting that "[w]hile [the
wishes of the child] is one of many factors under R.C. 2151.414(D), it is not controlling").
Thus, the trial court could not give M.W.'s wishes under the R.C. 2151.414(D)(1)(b) factor
greater weight than the other best interest factors.
{¶ 27} Furthermore, the court had to consider M.W.'s stated wishes in light of the
GAL's recommendation. The GAL was appointed to the case shortly after the initial filing.
The GAL acknowledged that mother and M.W. were "very bonded," but indicated that
mother had a "long history of one step forward, two steps backwards." (Oct. 4, 2019 Tr. at
56.) The GAL explained that mother "demonstrate[d] a very poor ability to put into practice
whatever she learns from parenting classes and to have an appropriate level of parenting
No. 19AP-769 8
supervision." (Oct. 4, 2019 Tr. at 57.) The GAL noted that mother only kept things together
for "about eight months" and did not "seem to go beyond that." (Oct. 4, 2019 Tr. at 60.) As
such, the GAL characterized M.W.'s wish to return to her mother's custody as "unrealistic."
(Oct. 4, 2019 Tr. at 58.)
{¶ 28} The court appropriately weighed M.W.'s expressed wish to return to her
mother and the GAL's contrary recommendation in the court's analysis of the R.C.
2151.414(D)(1)(b) best interest factor. The GAL's recommendation permitted the court to
weigh the R.C. 2151.414(D)(1)(b) factor somewhat in favor of granting FCCS permanent
custody. See In re J.W., 10th Dist. No. 19AP-122, 2019-Ohio-4775, ¶ 29 (stating that, where
the wish of the child conflicted with the GAL's recommendation to grant the motion for
permanent custody, the R.C. 2151.414(D)(1)(b) factor "nonetheless weigh[ed] at least
somewhat in favor of the trial court granting permanent custody to FCCS").
{¶ 29} Mother contends that the R.C. 2151.414(D)(1)(c) best interest factor,
concerning the custodial history of the child, did not weigh in favor of granting FCCS
permanent custody. In addressing the R.C. 2151.414(D)(1)(c) factor, the court noted only
that M.W. had been in the temporary custody of FCCS for more than 12 months out of a
consecutive 22-month period. Mother does not dispute the length of time M.W. was in the
temporary custody of FCCS; rather, mother asserts that the "12-out-of-22 circumstance"
should not necessarily weigh in favor of permanent custody, as the 12-out-of-22
circumstance "triggers the statutory best-interest analysis" under R.C. 2151.414(B)(1).
(Appellant's Brief at 47.)
{¶ 30} However, as any of the R.C. 2151.414(B)(1)(a) through (e) factors may trigger
the best interest analysis, the 12-out-of-22 circumstance described in R.C.
2151.414(B)(1)(d) will not always be the triggering event. Moreover, while R.C.
2151.414(B)(1)(d) addresses only the 12-out-of-22 circumstance, R.C. 2151.414(D)(1)(c)
permits a court to review the broader custodial history of the child. See In re S.H., 12th Dist.
No. CA2020-02-023, 2020-Ohio-3499, ¶ 33 (noting the "plain language of R.C.
2151.414(D)(1)(c) instructs the court to consider, generally, the custodial history of the
child"); In re Ca.T., 8th Dist. No. 108969, 2020-Ohio-579, ¶ 35. While the trial court may
consider additional facts beyond the 12-out-of-22 circumstance in its analysis under R.C.
2151.414(D)(1)(c), the court is under no obligation to do so. In re T.M., 10th Dist. No. 18AP-
No. 19AP-769 9
943, 2020-Ohio-815, ¶ 19 (rejecting the contention that a trial court must take other facts
beyond the 12-out-of-22 finding into consideration when considering custodial history
under R.C. 2151.414(D)(1)(c)).
{¶ 31} In the present case, however, M.W.'s entire custodial history weighs in favor
of granting FCCS permanent custody. FCCS first gained temporary custody of M.W. in
2009, when M.W. was three years old. The 2009 case opened after mother was publicly
intoxicated and walking in a busy street with her children. Although M.W. returned to
mother's care in 2010, the 2009 case did not close until October 2013. M.W.'s custodial
history in the present case began only two years later, in October 2015, and M.W. has
remained in FCCS custody since that time.
{¶ 32} Mother contends the time M.W. spent in FCCS temporary custody should not
weigh against her, as FCCS sought extensions of temporary custody for reasons not related
to mother. However, FCCS's first and second motions for extensions of temporary custody
stated the extensions were necessary because M.W. needed additional time to complete
treatment and because mother needed additional time to complete case plan objectives. At
the time the court granted both the first and second extensions of temporary custody,
mother had yet to maintain stable housing in the case. Accordingly, mother's need to
complete her case plan objectives, including acquiring stable housing, also contributed to
the greater than 12-month time period M.W. spent in FCCS temporary custody.
{¶ 33} Thus, the record demonstrates the trial court made the 12-out-of-22 finding,
and that M.W.'s more detailed custodial history weighed in favor of granting the motion for
permanent custody. Accordingly, the R.C. 2151.414(D)(1)(c) best interest factor weighed in
favor of granting FCCS permanent custody.
{¶ 34} Mother asserts the evidence relevant to the R.C. 2151.414(D)(1)(d) best
interest factor, concerning the child's need for legally secure placement and whether such
placement can be achieved without a grant of permanent custody, weighed against granting
FCCS permanent custody. "Without doubt, every child needs a legally-secure placement."
E.G. at ¶ 26. The trial court noted M.W. was in great need of legally secure placement and
that such placement could not be achieved without granting permanent custody to the
agency. The trial court found M.W.'s father had abandoned her, and there were no relatives
who were suitable alternative placements.
No. 19AP-769 10
{¶ 35} The court noted M.W.'s diagnoses and the behavioral issues she
demonstrated throughout the case. The court observed M.W. had made significant progress
while living at Buckeye Ranch and that she was ready to be discharged "into a family setting
with continued outpatient counseling and medication services." (Decision at 12.) FCCS
placed M.W. at Buckeye Ranch due to incidents of suicidal threats, running away from
placement, and physical aggression toward others. At Buckeye Ranch, M.W. participated
in weekly individual therapy, daily group counseling, and took her prescribed medications.
After a year of treatment M.W. had demonstrated "a sharp decrease in suicidal threats,"
reduced "incidents of AWOL or out of bounds," "decreased incidents of physical
aggression," and an improved ability to express emotions. (Oct. 4, 2019 Tr. at 50.) M.W.
was also excelling academically at Buckeye Ranch.
{¶ 36} The court addressed mother's two other children, Ma.W. and R.W. The court
observed Ma.W. was removed from mother's custody and placed in the legal custody of an
aunt in 2009, and that mother "pled guilty to Domestic Violence of [Ma.W.] in 2010."
(Decision at 13.) The court noted R.W. attempted suicide in March 2017, was suspended for
bringing a knife to school in September 2018, assaulted a teacher in May 2019, and was
charged with receiving stolen property in September 2019. At the time of trial, FCCS had
custody of R.W., but R.W. had recently "AWOLed from [the] agency" and his whereabouts
were unknown. (Oct. 4, 2019 Tr. at 10, 13.) R.W. left agency custody during a September
2019 incident where the FCCS caseworker left mother and R.W. alone in the lobby of the
FCCS building.
{¶ 37} The court observed mother had completed some objectives of her case plan,
as mother completed AOD assessment and treatment, completed parenting classes shortly
before trial, had worked with a parent mentor, and visited M.W. throughout the case "even
if considered not as often as she could." (Decision at 14.) The court noted mother had social
security income and worked a temporary employment job. The court observed that,
although mother only participated in two family counseling sessions with M.W. at Buckeye
Ranch, mother had participated in family counseling sessions at other times throughout
the case. The court addressed the fact that mother was being considered for reunification
in 2018, but noted that mother then "began a downhill slide" and made "extremely poor
No. 19AP-769 11
choices which included leaving a stable apartment, becoming homeless for a period."
(Decision at 14.)
{¶ 38} At the time of trial, mother had been living in her own independent housing
since February 2019. Mother asserts that, as she had housing at the time of trial, she was
able to provide for M.W.'s basic needs. The caseworker testified to the difficulties she
encountered trying to visit with mother in her current residence, as mother frequently was
not at the home and there was a "two-month span where [mother] did not have a working
phone." (Oct. 3, 2019 Tr. at 150-51.) However, after being able to visit the home, the
caseworker did not have any safety concerns about the home.
{¶ 39} Although mother maintained housing for several months prior to trial,
mother had not maintained permanent and stable housing throughout the life of the case.
Mother stated she lived in three residences on her own, in no more than five homes of
friends or family members, and in a homeless shelter throughout the case. (Oct. 3, 2019 Tr.
at 74-76.) Mother maintained stable housing for several months between 2017 and 2018,
but lost housing in 2018 and became homeless for "about five months." (Oct. 4, 2019 Tr. at
77.)
{¶ 40} "[A] court is not limited to considering only current compliance with case
plan objectives related to housing and income in its analysis of the child's need for a legally
secure, permanent placement." K.R. at ¶ 87, citing R.L. at ¶ 15-17. See In re K.Z., 4th Dist.
No. 19CA22, 2020-Ohio-1013, ¶ 76 (observing that "[e]ven if at times the parents lived in a
stable home, they were unable to maintain a stable home throughout the case"); T.M. at ¶
25 (holding that all the "positive actions" mother took with respect to her case plan were
"in vain given her inability to provide a safe and stable home for the children"). Mother's
inability to maintain housing throughout the case demonstrated that mother could not
provide M.W. with stable housing.
{¶ 41} Mother asserts the trial court unduly faulted her for choosing to leave the East
26th Avenue apartment and become homeless, as the "evidence described a constructive
eviction situation." (Appellant's Brief at 50.) Mother affirmed she was evicted from the East
26th Avenue apartment, explaining that she "did not want to pay [the landlord] after he
wouldn't fix anything up, so [she] took the money and moved." (Oct. 3, 2019 Tr. at 73-74.)
Mother indicated that in her mind the maintenance issues rendered the apartment
No. 19AP-769 12
uninhabitable. Mother also affirmed she was aware of the Franklin County Municipal
Court's rent escrow program, which permits tenants to place their rent in escrow until a
dispute regarding housing is resolved. Mother stated she did not utilize this county program
because "when [she] went to court, they just said if I had moved that I would not have an
eviction on my record, so I moved." (Oct. 4, 2019 Tr. at 69.) Mother also stated that she
"basically wanted to leave [the apartment] anyway." (Oct. 4, 2019 Tr. at 79.) However,
mother admitted she did not have plans for a new living arrangement when she left the East
26th Avenue apartment and that she became homeless as a result. (Oct. 4, 2019 Tr. at 80.)
{¶ 42} " '[T]he weight to be given the evidence and the credibility of the witnesses
are primarily questions to be answered by the trier of fact.' " T.M. at ¶ 10, quoting Sparre v.
Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-Ohio-4153, ¶ 12. "The rationale for
this deference is the trier of fact is in the best position to view witnesses and observe their
demeanor, voice inflections, and gestures." Id., citing Seasons Coal Co., Inc. v. Cleveland,
10 Ohio St.3d 77, 80 (1984). The trial court was in the best position to judge the credibility
of mother's contention that maintenance issues in the East 26th Avenue apartment forced
mother to become homeless. Evidence in the record supported the trial court's conclusion
that mother made choices which resulted in her becoming homeless including that mother
failed to make alternative living arrangements before leaving the apartment and failed to
utilize a county program which could have helped remedy the maintenance issues in the
apartment.
{¶ 43} The trial court observed that, although mother claimed to have "money in the
bank," mother admitted she was behind on a utility bill and that she had no working phone
in her residence. (Decision at 15.) The court also noted that mother had "no transportation
to take [M.W.] for appointments." (Decision at 15.) Although mother contends she had
sufficient income to support herself and M.W., mother affirmed that throughout the case
she asked the agency for financial assistance to buy furniture, a washer and dryer, pay her
rent, and for transportation. (Oct. 3, 2019 Tr. at 81.) Mother asserts that she would utilize
public transportation to take M.W. to appointments. However, the record indicated that
when the agency did not provide mother with transportation, mother would miss
visitations. Mother testified she missed drug screens when she did not have "a bus pass to
No. 19AP-769 13
get down there." (Oct. 3, 2019 Tr. at 58.) Accordingly, the record supported the court's
concerns regarding mother's income and lack of transportation.
{¶ 44} Mother asserts the trial court unnecessarily faulted her for failing to engage
in additional family counseling sessions at Buckeye Ranch. Although mother contends
there were no issues between her and M.W. which necessitated family counseling,
participating in family counseling was a component of mother's case plan. The trial court
observed mother had "not facilitated family counseling to help herself deal with her special
needs child's homecoming." (Decision at 15.) Thus, the court appropriately considered
mother's decision to not participate in family counseling as a detriment to mother's ability
to care for M.W.
{¶ 45} Mother participated in two family counseling sessions during the year M.W.
was at Buckeye Ranch, one in August 2019 and the other immediately prior to trial in
October 2019. The FCCS caseworker explained mother was supposed to "at least
participate in family counseling once or twice a month" at Buckeye Ranch. (Oct. 3, 2019 Tr.
at 145.) Mother stated she had been "waiting on the [Buckeye Ranch] clinician to give [her]
a call" to schedule family counseling, but she "hadn't heard from her." (Oct. 3, 2019 Tr. at
95-96.) Mother did not reach out to Buckeye Ranch to try to schedule family counseling
sessions. The Buckeye Ranch clinician testified she tried to contact mother to schedule
family counseling, but that "phone service was an issue." (Oct. 4, 2019 Tr. at 50.) From
February to May 2019, Buckeye Ranch attempted to contact mother to schedule family
counseling, but mother's "contact information continue[d] to not be valid" throughout that
time. (May 13, 2019 SAR at 2.) Notably, the FCCS caseworker informed mother that
participating in two consecutive family counseling sessions was a prerequisite to allowing
M.W. to have visits in mother's home. Yet, mother did not participate in sufficient family
counseling sessions to permit home visits throughout 2019.
{¶ 46} Mother told the court she would follow through with getting M.W. the mental
health treatment she needed if M.W. returned to her care. The trial court, however,
observed that mother had "no plans for continued counseling, school placement, or
outpatient psychiatric and medical care for her daughter if she [was] returned home."
(Decision at 15.) The court also noted mother could not "name any of the prescriptions her
child needs to stabilize her behavior." (Decision at 15.) The court observed mother made
No. 19AP-769 14
"poor choices" with respect to R.W., including mother's choices for R.W.'s "care while she
was away from home, failing to get [R.W.] mental health assistance and taking his suicidal
ideations as attention seeking behavior, failing to supervise him and allowing him to AWOL
from Children Services." (Decision at 14-15.) The court concluded that returning M.W. to
mother "now or in the near future would most certainly lead only to the deterioration of the
great progress [M.W.] has made." (Decision at 15.)
{¶ 47} Mother asserts the trial court "moved the goal post" in the present case, as
the court terminated mother's parental rights of M.W. based on evidence concerning R.W.
(Appellant's Brief at 54.) Mother contends she was not responsible for R.W.'s bad behavior,
and that R.W.'s behavior did not preclude mother from meeting M.W.'s needs. Although
the trial court did not base its permanent custody decision solely on evidence concerning
R.W. as mother appears to contend, mother's parenting choices with respect to R.W. were
a relevant factor for the court to consider in its assessment of mother's ability to care for
M.W.'s needs.
{¶ 48} "[N]othing prohibits a court from basing a permanent custody decision upon
a parent's past history with a children services agency. In fact, courts have recognized that
a parent's past history is one of the best predicators of future behavior." In re West, 4th
Dist. No. 05CA4, 2005-Ohio-2977, ¶ 28. Thus, a parent's "past parenting history and her
ability to comply with prior reunification plans regarding her other children [are] relevant
considerations in the juvenile court's dispositional determination to commit [mother's
current child] to the permanent custody of the Department." In re Brown, 60 Ohio App.3d
136, 139 (1st Dist.1989). See In re Vaughn, 4th Dist. No. 00CA692 (Dec. 6, 2000) (noting
that "[t]o further the interests of the children, the court must consider any evidence
available to it, including a parent's pattern of conduct," as "[s]ome of the most reliable
evidence for the court to consider is the past history of the children and the parents"); In re
J.B., 6th Dist. No. S-14-005, 2015-Ohio-460, ¶ 96 (holding that "[i]nformation about the
family's history with children services," including testimony about "past referrals regarding
the family which were unrelated to this case," were "relevant and admissible in a permanent
custody action"); In re T.W., 10th Dist. No. 10AP-897, 2011-Ohio-903, ¶ 28 (holding that
appellant's "failure to complete case plan objectives with respect to T.W.1, T.W.2, T.J., and
No. 19AP-769 15
N.H. [was] clearly relevant to the determination of whether appellant ha[d] remedied the
problems that caused [her youngest child] C.H.'s removal").
{¶ 49} The June 8, 2018 gun incident which brought R.W. under agency supervision
occurred after mother left R.W. in Ma.W.'s care. The October 17, 2015 incident which
resulted in M.W.'s removal from mother's care also occurred after mother left M.W. in
Ma.W.'s care. The GAL testified that part of mother's problem with parental supervision
was that, when mother "delegates parental supervision, she chooses bad people such as her
adult daughter and that's part of that two steps backwards." (Oct. 4, 2019 Tr. at 56.)
Mother's failure to supervise R.W. and her continued delegation of parental responsibilities
to Ma.W. demonstrated that mother had not remedied the problems that caused M.W.'s
removal from her custody in the present case.
{¶ 50} Moreover, the record indicated mother continued to use Ma.W. to supervise
M.W. during the case. M.W. spent five days at mother's residence during M.W.'s 2018
spring break. During those five days "[i]t was reported that [mother] was not there from
Sunday to Tuesday. [M.W.] was at the home with her adult sister due to [mother] working."
(Apr. 30, 2018 SAR at 4.) At trial, however, mother denied ever allowing Ma.W. to
supervise M.W. during a home visit. During the five days M.W. spent at mother's home in
spring 2018, M.W. "missed taking her medication while at the visits" and M.W.'s foster
mother described M.W. as "all off track" when she returned to the foster home. (Apr. 30,
2018 SAR at 4.)
{¶ 51} Mother explained she did not provide R.W. with counseling services after his
March 2017 suicide attempt because mother "felt that he was actually doing it for attention"
and "that he didn't need" counseling. (Oct. 3, 2019 Tr. at 66.) Following the June 8, 2018
gun incident, the agency referred R.W. to The Village Network for counseling services and
ordered that R.W. receive a mental health assessment. Mother admitted at trial that she
"had to make appointments to get to the point that -- to get [R.W.] into counseling," and
stated that it "probably took a month" for her to set up the counseling appointment for R.W.
(Oct. 4, 2019 Tr. at 93-94.) The caseworker investigated mother's claim that she had "called
someone back" about scheduling a counseling appointment for R.W., and discovered that
mother "had not" made any call to schedule R.W. for counseling. (Oct. 4, 2019 Tr. at 39-
No. 19AP-769 16
40.) The caseworker stated that mother did not follow through with setting R.W. up with
counseling or a mental health assessment.
{¶ 52} Mother explained that she viewed M.W. differently than R.W. because "they
diagnosed her with stuff, as my son they didn't." (Oct. 4, 2019 Tr. at 76.) Although mother
testified that she believed M.W. was getting help with "depression" at Buckeye Ranch,
mother could not name any of M.W.'s other diagnoses and could not name any of the
medications M.W. was taking. (Oct. 3, 2019 Tr. at 98-99.)
{¶ 53} The FCCS caseworker stated that, if M.W. were returned to mother, the
agency would "make a referral to an aftercare service" but mother "would have to follow up
with that provider in calling them back, setting up an appointment." (Oct. 4, 2019 Tr. at
36.) The caseworker testified that based on mother's "history of not following through with
providers, calling them back, responding to them reaching out to her," the caseworker was
concerned M.W. would "not get her aftercare services that she needs" if M.W. returned to
mother's care. (Oct. 3, 2019 Tr. at 142.) The GAL stated that he did not believe "mother
could adequately parent and supervise [M.W.]," as mother's issues with R.W. indicated that
mother would not "be able to meet [M.W.'s] higher special needs." (Oct. 4, 2019 Tr. at 57-
58.)
{¶ 54} The record demonstrated that M.W. being medication compliant and in
consistent therapy had resulted in a decline in M.W.'s suicidal and inappropriate behaviors.
M.W.'s need to continue her mental health treatment was a relevant factor for the court to
consider in its assessment of M.W.'s best interest. See T.W. at ¶ 47 (stating the trial court
"considered 'other relevant factors' including each of the children's individual treatment
needs"). Mother's choice to not provide R.W. with mental health treatment following a
suicide attempt, mother's belief that R.W.'s suicide attempt was attention seeking behavior,
and mother's failure to set R.W. up with counseling or a mental health assessment after
FCCS referred those services were relevant to the court's assessment of the credibility of
mother's contention that she would provide M.W. with mental health treatment. M.W.'s
behaviors throughout the case demonstrated that she needed consistent parental
supervision, but the record indicated mother continued to fail to supervise R.W. and that
mother failed to properly supervise M.W. during an extended visit in spring 2018.
No. 19AP-769 17
{¶ 55} Thus, the trial court did not simply consider R.W.'s bad behavior in isolation,
but properly considered mother's parenting choices in response to R.W.'s behaviors and
needs as indicators of the parenting choices mother would make with respect to M.W.
Competent and credible evidence in the record supported the court's conclusion that
mother could not provide M.W. with legally secure and permanent placement. Indeed, in
addition to mother's parenting choices for R.W., the record demonstrated that mother was
unable to maintain stable housing throughout the case, failed to participate in sufficient
family counseling sessions at Buckeye Ranch, was not familiar with M.W.'s diagnoses and
medications, did not appear to have sufficient income to support M.W., and lacked
transportation to take M.W. to appointments. The GAL and the FCCS caseworker testified
that mother could not adequately supervise M.W. or care for M.W.'s needs.
{¶ 56} Although mother asserts M.W.'s numerous placement changes while in FCCS
custody fail to demonstrate stability, the record demonstrates M.W.'s placement changes
were due in large part to M.W.'s problematic behavioral issues, and that M.W. had recently
made great progress on those issues through her treatment at Buckeye Ranch. Accordingly,
the record supports the court's conclusion that returning M.W. to mother's care would
detract from M.W.'s great progress and would fail to provide M.W. with the stability she
needs. See In re J.L.M., 12th Dist. No. CA2015-11-206, 2016-Ohio-2773, ¶ 35 (holding that,
where mother asserted that the juvenile court " 'minimized' the fact that [the children's]
current foster home [was] their third placement," in light of mother's "inability to attain
and maintain stable housing and a stable source of income, granting Mother custody of the
children would not add to the children's security and stability, but instead, detract from it
immeasurably"). The R.C. 2151.414(D)(1)(d) best interest factor weighed in favor of
granting FCCS permanent custody.
{¶ 57} Mother contends the trial court's best interest analysis was against the
manifest weight of the evidence because mother had substantially completed her case plan
at the time of trial. However, "R.C. 2151.414(D) does not require courts to deny a children
services agency's motion for permanent custody solely by virtue of a parent's substantial
compliance with the case plan," as substantial compliance with a case plan is "but one of
many factors the court may find relevant * * * in rendering its judgment." In re Brooks at
¶ 62-63. "Thus, while evidence of case plan compliance is relevant to a best-interest
No. 19AP-769 18
determination, it is not dispositive of it." T.W. at ¶ 55. Accord T.M. at ¶ 31; In re Conn,
10th Dist. No. 03AP-348, 2003-Ohio-5344, ¶ 19. The trial court concluded that, while
mother had completed several portions of her case plan at trial, mother also demonstrated
that she could only "intermittently achieve" the goals stated in her case plan before
"return[ing] to her previous habits and choices." (Decision at 15.)
{¶ 58} Mother lastly contends that, as the trial court did not find any of the R.C.
2151.414(E)(7) through (11) factors applicable to mother, the R.C. 2151.414(D)(1)(e) best
interest factor weighed against granting permanent custody to FCCS. Mother asserts that
the absence of the R.C. 2151.414(E)(7) through (11) factors demonstrates mother was not
chronically unfit or abusive to children in the past. However, " 'R.C. 2151.414 does not
require that a trial court find a parent unfit before it may terminate that parent's parental
rights.' " In re P.S., 10th Dist. No. 08AP-1023, 2009-Ohio-1545, ¶ 17, quoting In re W.A.,
10th Dist. No. 06AP-485, 2006-Ohio-5750, ¶ 18. In a case in which R.C. 2151.414(B)(1)(d)
applies, the trial court is only required to find that the termination of parental rights is in
the best interest of the children. Id. at ¶ 17. The trial court properly weighed the absence of
the R.C. 2151.414(E)(7) through (11) factors against the other relevant best interest factors
which were present in the case. See In re L.C.G., 7th Dist. No. 16 MA 0039, 2016-Ohio-
8217, ¶ 34-35, 58.
{¶ 59} Upon a thorough consideration of the record, we find clear and convincing
evidence exists to support the trial court's determination that an award of permanent
custody was in M.W.'s best interest. As such, the trial court's decision granting permanent
custody to FCCS was not against the manifest weight of the evidence. Mother's sole
assignment of error is overruled.
{¶ 60} Having overruled mother's sole assignment of error, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
is affirmed.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.
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