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Date: 11-16-2017

Case Style:

In re: G.A. and W.A.

Summit County Courthouse - Akron, Ohio

Case Number: 28664, 28665

Judge: Jennifer Hensal

Court: Ohio Court of Appeals, Ninth Judicial District on appeal from the Court of Common Pleas, Summit County

Plaintiff's Attorney: SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.


JOSEPH KERNAN, Guardian ad Litem.

Defendant's Attorney: ANGELA M. KILLE, Attorney at Law, for Appellant.


DENISE E. FERGUSON, Attorney at Law, for Appellant.

Description: {∂1} Appellants, E.A. (ďMother) and J.J. (ďFatherĒ), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights
and placed two minor children in the permanent custody of Summit County Children Services
Board (ďCSBĒ). This Court affirms.
I.
{∂2} Mother is the biological mother of G.A., born May 24, 2013; and W.A., born
September 2, 2014. Mother has other children who are not parties to this appeal. Father is the
biological father of only W.A., but has always thought of G.A. as his own child because he
began a relationship with Mother while she was pregnant with G.A. The father of G.A. has not
been involved in the childís life and did not participate in these proceedings.
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{∂3} Motherís parental rights to an older child were terminated in Cuyahoga County in
2013. That child was placed in the permanent custody of the agency because, among other
reasons, Mother failed to consistently address her serious mental health and drug problems and
repeatedly lost contact with the agency and her child.
{∂4} Just before this case began, Mother temporarily relocated to Summit County and
was again struggling with drug problems. On February 20, 2015, Akron Police removed G.A.
and W.A. from Motherís custody pursuant to Juv.R. 6. At that time, Mother was arrested and
incarcerated on drug charges; the children were with a family that had an open case with CSB
and was not permitted to take other children into their home; and CSB had been unable to find a
relative to care for the children. The record includes contradictory facts about Fatherís
whereabouts at that time, but it was not disputed that he lacked the ability to provide the children
with a suitable home.
{∂5} CSB filed complaints, alleging that both children were dependent. The trial court
later adjudicated them dependent and placed them in the temporary custody of CSB. By that
time, Mother was no longer incarcerated but Father was. Father was convicted after an incident
of domestic violence against Mother. Mother sustained numerous physical injuries, including
black eyes, a broken wrist, and a wound behind her ear that required sutures. Because Father
was sentenced to an 18-month term of incarceration, he remained incarcerated throughout most
of this case.
{∂6} Shortly after this case began, Mother moved back to Cuyahoga County and later
gave birth to two more children there. Cuyahoga County Department of Children and Family
Services filed dependency cases and received temporary custody of those children. The case
plan in Cuyahoga County was similar to the case plan in this case, and the caseworkers from the
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two counties worked together to coordinate Motherís services and monitor her case plan
progress.
{∂7} Although both caseworkers encouraged Mother to work on the reunification goals
of the case plans, Mother repeatedly tested positive for drugs, never completed substance abuse
treatment, refused to engage in any mental health treatment, did not obtain housing, and did not
maintain consistent contact with CSB, her children, or the court. Moreover, Mother remained
involved in a violent romantic relationship with another man.
{∂8} On August 9, 2016, CSB moved for permanent custody of G.A. and W.A. Two
weeks later, Father was released from his term of incarceration and soon began weekly,
supervised visitation with the children. Father later filed a motion for legal custody of the
children and to continue the final dispositional hearing.
{∂9} The final hearing was held several months later over two days: March 31 and May
2, 2017. Between the two hearing dates, Father filed another dispositional motion, requesting
that he and Mother receive shared parenting. On the second day of the hearing, counsel for the
parents clarified to the trial court that Father and Mother were seeking joint legal custody of the
children and that Father no longer sought sole legal custody.
{∂10} Following a hearing on the competing dispositional motions, the trial court found
that the children had been in the temporary custody of CSB for more than 12 months of a
consecutive 22-month period and that permanent custody was in their best interest. The parents
separately appealed and their appeals were later consolidated. Each raises a single assignment of
error, which will be addressed together for ease of review.
4
II.
MOTHERíS ASSIGNMENT OF ERROR
THE COURT ERRED IN FINDING THAT PERMANENT CUSTODY WAS IN
THE BEST INTEREST OF THE CHILDREN AND DENYING THE
PARENTSí MOTION FOR SHARED [LEGAL CUSTODY].
FATHERíS ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
WHEN IT TERMINATED FATHERíS PARENTAL RIGHTS AS THE
[JUDGMENT] WAS NOT SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{∂11} Both parents argue that the trial courtís permanent custody decision was not
supported by the evidence. Before a juvenile court may terminate parental rights and award
permanent custody of children to a proper moving agency it must find clear and convincing
evidence of both prongs of the permanent custody test: (1) that the children are abandoned;
orphaned; have been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period; they or another child in a parentís custody have been adjudicated
abused, neglected, or dependent on three separate occasions; or they cannot be placed with either
parent within a reasonable time or should not be placed with either parent, based on an analysis
under Revised Code Section 2151.414(E); and (2) that the grant of permanent custody to the
agency is in the best interest of the children, based on an analysis under Section 2151.414(D).
See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99
(1996).
{∂12} The trial court found that CSB had satisfied the first prong of the test because the
children had been in the temporary custody of CSB for more than 12 months of a consecutive
22-month period. See R.C. 2151.414(B)(1)(d). Mother and Father do not dispute that finding
5
but confine their arguments to the trial courtís determination that permanent custody was in the
best interest of the children.
{∂13} When determining the childrenís best interest under Revised Code Section
2151.414(D), the juvenile court must consider all relevant factors, including the interaction and
interrelationships of the children, their wishes, their custodial history, and the need for
permanence in their lives. In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ∂
11. Fatherís best interest argument focuses almost entirely on his compliance with the case plan.
Although Father completed some classes and treatment while he was incarcerated, most of his
case plan compliance occurred after CSB had moved for permanent custody. Moreover,
evidence of case plan compliance may be relevant to the trial courtís best interest determination,
but is not dispositive. In re J.J., 9th Dist. Summit No. 22236, 2004-Ohio-6538, ∂ 8.
{∂14} The first best interest factor is the ď[t]he interaction and interrelationship of the
child[ren] with [their] parents, siblings, relatives, foster caregivers and * * * any other person
who may significantly affect the child[ren.]Ē R.C. 2151.414(D)(1)(a). This Court has
emphasized that the first best interest factor is ďĎhighly significantíĒ and ďfocuses on a critical
component of the permanent custody test: whether there is a family relationship that should be
preserved.íĒ In re CM., 9th Dist. Summit No. 21372, 2003-Ohio-5040, ∂ 11, quoting In re
Smith, 9th Dist. Summit No. 20711, 2002 Ohio App. LEXIS 2, *12 (Jan. 2, 2002). This best
interest factor did not weigh in favor of Mother and Father maintaining their parental rights.
{∂15} For the past two years, Motherís interaction with the children had been limited to
supervised visits because she never complied with the mental health, substance abuse, or
parenting education components of the case plan. Mother continued to test positive for drugs
and failed to maintain consistent contact with her children, CSB, the court, or her attorney.
6
Motherís Summit County caseworker also expressed concern that Mother had cognitive delays
and had difficulty interacting with the children because she seemed to lack the ability to nurture
them. Both caseworkers were also concerned that Mother continued to involve herself in violent
relationships.
{∂16} Although witnesses agreed that Fatherís recent visits with the children had been
appropriate and positive, Father had no interaction with these young children for 18 months
while he was incarcerated. Since then, Fatherís interaction with the children had been limited to
weekly, supervised visits that were never expanded because he did not complete the mental
health component of the case plan. Moreover, Fatherís reunification goal was to jointly parent
the children with Mother, who had not remedied any of the problems that brought the children
into CSB custody. Father planned to leave the children in Motherís care while he worked, even
though she did not appropriately supervise them and continued to regularly use drugs.
{∂17} The children had consistent and positive daily interaction with the foster family,
however. They had been living together in the same foster home for nearly two years and the
foster family was meeting all of their daily needs. Both children were closely bonded to each
other and the foster family. The foster parents were interested in adopting G.A. and W.A. if CSB
received permanent custody.
{∂18} At the time of the hearing, the children were only two and three years old, so the
guardian ad litem spoke on their behalf. She opined that permanent custody was in their best
interest because Mother and Father had not made much progress on the reunification goals of the
case plan and the children had found a stable and potentially permanent home with the foster
family.
7
{∂19} The children had remained in the temporary custody of CSB for most of their
young lives and were in need of a legally secure permanent placement. CSB had been unable to
find any relatives who were willing and able to provide them with a stable home. Although
Father and Mother argue that they were prepared to provide the children with a suitable
permanent home, the record demonstrates otherwise.
{∂20} On the first day of the hearing, both parents were homeless. By the second
hearing date, Mother had acquired public housing. Father had not acquired housing and
explained that his criminal record had been an obstacle. He testified that he would live with
Mother, but the Cuyahoga County caseworker testified that Mother was not permitted to allow
Father to live in her government-subsidized housing.
{∂21} Moreover, Mother had not even minimally complied with the mental health or
substance abuse components of the case plan. Father testified that he would parent the children
with Mother, even though she had not complied with the case plan requirements to remedy her
long-standing parenting problems that had brought these two children and three other children
into the custody of two children services agencies. Father believed that Mother had changed,
despite her failure to engage in services.
{∂22} Moreover, Mother and Father had a history of domestic violence, including an
incident that caused serious physical harm to Mother and sent Father to prison for 18 months.
Mother had not complied with the case plan requirement that she remedy her problem of
involving herself in abusive relationships, as she continued to do so.
{∂23} Father asserts that the trial court improperly considered that he had not engaged in
domestic violence counseling because that was not a requirement of the case plan. The trial
court did not suggest that Father had failed to comply with a requirement of the case plan but
8
simply made that observation when considering whether it would be in the childrenís best
interest to be placed in the joint legal custody of both parents. The trial court was reasonably
concerned that neither parent had developed the tools to break the cycle of violence in their
relationship.
{∂24} Consequently, the evidence demonstrated that the parents were not prepared to
provide the children with a legally secure permanent placement and CSB had been unable to find
another relative who was willing and able to do so. The parents have failed to demonstrate that
the trial court erred in concluding that permanent custody was in the best interest of G.A. and
W.A. Motherís and Fatherís assignments of error are overruled.

* * *

We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
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(C). The Clerk of the Court of Appeals is
9
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.

Outcome: {∂25} The parentsí assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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