[Cite as In re Z.W., 2020-Ohio-3100.]




                       IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                        HAMILTON COUNTY, OHIO




IN RE: Z.W.                                 :    APPEAL NO. C-200061
                                                 TRIAL NO. F16-1548

                                            :      O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 27, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Erica Bowen, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,

Jeffrey J. Cutcher, for appellant Mother,

Megan E. Busam, Guardian ad Litem for Z.W..
                       OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Presiding Judge.

       {¶1}   In this permanent custody case, the juvenile court ordered the termination of

Mother’s parental rights based on a chronic history of substance abuse and mental health

problems, which contributed to the termination of rights over her other children.

Conducting our independent review, we find that clear and convincing evidence supports

the juvenile court’s decision, and we accordingly affirm.

                                              I.

       {¶2}   In January 2019, Mother gave birth to Z.W., but the Hamilton County

Department of Job and Family Services (“HCJFS”) quickly became involved after both

Mother and Z.W. tested positive for oxycodone. Based in part on this positive test, and in

part over concerns regarding Mother’s history with substance abuse, mental health issues,

and involuntary termination of her rights as to her four other children, HCJFS opened a

case, requesting an ex parte emergency grant of custody of Z.W, which the court granted.

HCJFS later filed an amended custody complaint requesting permanent custody of Z.W.,

who was eventually adjudicated abused, neglected, and dependent.

       {¶3}   Prior to the hearing on permanent custody (a period of approximately eight

months), HCJFS worked with Mother towards reunification with Z.W. Though Mother’s

case plan was not formally adopted by the court at that time, Mother’s case worker, Kacie

Rolfes, testified to ongoing conversations with Mother regarding HCJFS’s expectations of

Mother in order to reunite her with Z.W. This included Mother’s participation in individual

therapy and med-somatic treatment to address mental health concerns, submitting to

random toxicology screens, and maintaining stable housing and employment. HCJFS also




                                              2
                          OHIO FIRST DISTRICT COURT OF APPEALS


facilitated visits with Z.W., providing Mother with over 200 bus passes to alleviate

transportation concerns.

        {¶4}    But as time passed, Mother struggled to meet these goals. While she secured

a job and an apartment, she failed to take advantage of referrals from HCJFS for therapy

and med-somatic services. Shortly after Z.W. was removed from her care, Mother tested

positive for morphine and marijuana. She failed to participate in two subsequent toxicology

screens and a hair follicle test, but tested negative for drugs in the last screen she took. Ms.

Rolfes also noted that Mother missed or cancelled several visits with Z.W., which

contributed to HCJFS’s decision to discontinue facilitating visits with Z.W.

        {¶5}    In September 2019, a hearing on the permanent custody motion convened

before a magistrate, where the magistrate heard the testimony of both Mother and Ms.

Rolfes.1 For her part, Mother emphasized that she was maintaining stable housing and a job

with a local restaurant. As to her lack of participation in services, Mother cited schedule

conflicts with her job and lack of transportation, but insisted that she would participate in

any such services if ordered to do so (as her case plan was not yet formally adopted). The

magistrate, however, found Mother’s testimony unconvincing, deeming her explanation for

missing services and visits due to a 20-minute walk to the bus stop unreasonable and

doubting Mother’s sincerity to participate in services if ordered to do so, given her lack of

progress in the current case. Based on this evidence, the magistrate later issued a decision

finding permanent custody to HCJFS to be in Z.W.’s best interest. Mother timely filed

objections to the magistrate’s decision, and the juvenile court held a hearing on the



1Z.W.’s alleged father took no part in these proceedings and has been absent throughout the pendency of
this case.

                                                   3
                       OHIO FIRST DISTRICT COURT OF APPEALS


objections in November 2019, but ultimately adopted the magistrate’s decision awarding

permanent custody to HCJFS, overruling Mother’s objections.

       {¶6}   Mother now appeals the juvenile court’s decision and raises a single

assignment of error challenging the award of permanent custody of Z.W. to HCJFS as

contrary to the manifest weight of the evidence.

                                              II.

       {¶7}   Review of a juvenile court’s grant of permanent custody requires our

independent finding that the decision is supported by clear and convincing evidence. See In

re L.M.B. and M.A.B., 1st Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, ¶

8; In re C Children, 1st Dist. Hamilton Nos. C-190650 and C-190682, ¶ 8.             Clear and

convincing evidence “ ‘produce[s] in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.’ ” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825,

895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus. As to challenges to the weight of the evidence, we review

the entire record to determine whether, in resolving conflicts in the evidence, the trial court

lost its way, resulting in a manifest miscarriage of justice. See In re A.B., 1st Dist. Hamilton

Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 16.

                                              A.

       {¶8}   In this case, HCJFS moved for a grant of permanent custody as part of an

original disposition. See R.C. 2151.27(C) and 2151.353(A)(4). Granting permanent custody

as an original disposition, however, requires that the juvenile court determine that (1) the

child cannot be placed with either parent within a reasonable time or should not be placed

with the parent utilizing the factors set forth in R.C. 2151.414(E), and (2) that the grant of

                                               4
                         OHIO FIRST DISTRICT COURT OF APPEALS


permanent custody is in the best interest of the child based upon the factors enumerated in

R.C. 2151.414(D)(1). See R.C. 2151.353(A)(4); In re R.B., 1st Dist. Hamilton Nos. C-190319

and C-190331, 2019-Ohio-3469, ¶ 10.

          {¶9}   Therefore, we begin our analysis by examining the juvenile court’s findings

supporting its determination that Z.W. could not be returned to Mother’s care within a

reasonable time or should not be returned to Mother. In making this determination, R.C.

2151.414(E) explains “the court shall consider all relevant evidence,” enumerating various

factors that the court can consider, and upon determining “one or more * * * exist as to each

of the child’s parents, the court shall enter a finding that the child cannot be placed with

either parent within a reasonable time or should not be placed with either parent[.]” R.C.

2151.414(E).

          {¶10} The juvenile court here found several factors satisfied. To begin, the court

pointed to R.C. 2151.414(E)(1) because Mother “failed continuously and repeatedly to

remedy the problems that initially caused [Z.W.] to be placed outside the * * * home” and

R.C. 2151.414(E)(2) because Mother had “[c]hronic mental illness * * * or chemical

dependency * * * that is so severe that it makes the parent unable to provide an adequate

permanent home for the child at the present time[.]” The juvenile court also found R.C.

2151.414(E)(11) satisfied, as Mother failed to present clear and convincing evidence that

“notwithstanding the prior termination [of parental rights], the parent can provide a legally

secure permanent placement and adequate care for the health, welfare, and safety of the

child.”

          {¶11} Clear and convincing evidence supports these conclusions. After completing a

diagnostic assessment, Mother was diagnosed with “unspecified bipolar and related

                                               5
                         OHIO FIRST DISTRICT COURT OF APPEALS


disorder” and both mild “cannabis use disorder” and “alcohol use disorder” (in remission).

As part of treatment, individual therapy and pharmacological management, i.e., med-

somatic services, were recommended. Ms. Rolfes testified to coordinating at least two

referrals for individual therapy and another referral for med-somatic services, but Mother

never followed up on these. Mother insisted that she had current prescribed medication for

her “bipolar seizures” and depression, but admitted she never provided any corroboration of

this to HCJFS.

          {¶12} State’s exhibit 1, Mother’s diagnostic assessment, chronicles Mother’s ongoing

struggle with substance abuse and mental health since childhood. It also reflects Mother’s

assertion that she has been “clean” for over ten years, despite testing positive for drugs twice

during 2019. In addition to the positive toxicology screen in February, Mother failed to take

two other screens and refused a hair follicle test. Mother does not dispute these things, but

rather emphasizes her last screen, which was negative, as proof of her sobriety. Mother also

justified her missed appointments and visits due to the 20-minute walk to the bus stop and

conflicts with her work schedule. Ms. Rolfes testified that despite requests for Mother’s

work schedule to accommodate appointments, Mother supplied her with only one schedule.

The magistrate refused to find these acceptable reasons for not participating in services and

visits.

          {¶13} Despite uncontroverted evidence of Mother’s failure to participate in services,

she points to her stable housing and work as evidence that she should be allowed more time

to complete her case plan. She specifically criticizes the juvenile court’s weighing of the

evidence in this regard. But the magistrate’s decision (later adopted by the juvenile court)

acknowledged Mother’s housing and a job—and while this is certainly a beneficial point for

                                                6
                       OHIO FIRST DISTRICT COURT OF APPEALS


Mother, it failed to overcome her drug use and mental health challenges, and her refusal to

engage in treatment for those problems. Based on the evidence, the magistrate and later

juvenile court concluded that Mother’s lack of progress regarding her mental health and

substance abuse satisfied the requirements under R.C. 2151.414(E)(1) and (E)(2). See In re

P., 1st Dist. Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 24-25 (R.C.

2151.414(E)(1) and (E)(2) findings supported by clear and convincing evidence and not

against the weight of the evidence where Mother failed to take medicine or participate in

therapy, skipped drug screens, and failed to substantially remedy problems that led to the

children’s removal); In re R.B., 1st Dist. Hamilton Nos. C-190319 and C-190331, 2019-Ohio-

3469, at ¶ 15-16, 20 (evidence taken as a whole supported (E)(1) and (E)(2) findings where

Mother refused to engaged in mental health and substance abuse services).

       {¶14} Finally, Mother concedes that due to the involuntary termination of her rights

as to her four other children, she bore the burden to provide clear and convincing evidence

that she is now able to provide a legally-secure home and adequate care for Z.W. See In re

R.D., 5th Dist. Stark No. 2019CA00146, 2020-Ohio-1456, ¶ 42 (“The burden is shifted to

Mother to prove by clear and convincing evidence that, notwithstanding the prior

termination, she can provide a legally-secure permanent placement and adequate care for

[her child’s] health, welfare, and safety.”). But when questioned by the magistrate as to why

things differed this time around, Mother offered little by way of proof, retreating again to

her housing and employment, concluding “I’m just a better person than I was.” Ultimately,

the juvenile court determined that Mother failed to carry her burden, particularly given her

failure to make significant progress with her services. See In re M.B. 10th Dist. Franklin No.

04AP755, 2005-Ohio-986, ¶ 22 (“Appellant failed to successfully complete significant

                                              7
                       OHIO FIRST DISTRICT COURT OF APPEALS


elements of his case plan, despite opportunities to do so. Such failure is grounds for

terminating appellant’s parental rights.”).

       {¶15} Mother challenges the magistrate and juvenile court as misconstruing her

testimony in finding that she was only willing to participate in services if ordered to do so.

The evidence reflected that Mother had not completed services, and while she testified that

she would comply with any case plan the court ordered, that assurance could be discounted

in light of her history of noncompliance with case plan services, which contributed to

involuntary termination of her parental rights in the past. While Mother may not have

explicitly stated that she would only comply if ordered to do so, the practical effect of her

actions throughout the pendency of the case, coupled with her testimony, supports the

juvenile court’s conclusion of her unwillingness to voluntarily comply with services. See In

re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, at ¶ 16 (weight of

the evidence challenges requires weighing the evidence and all reasonable inferences);

Matter of B.L., 2018-Ohio-547, 105 N.E.3d 379, ¶ 34 (12th Dist.) (“The presumption in

weighing the evidence is in favor of the finder of fact, which we are especially mindful of in

custody cases.”).

       {¶16} In sum, the juvenile court’s finding that Z.W. could not or should not be

placed with Mother was supported by clear and convincing evidence, and therefore not

contrary to the manifest weight of the evidence.

                                              B.

       {¶17} As we turn to the best interest findings, R.C. 2151.414(D)(1) requires that a

court consider all relevant factors, including those delineated in R.C. 2151.414(D)(1)(a)

through (e). Under this analysis, “no single factor holds greater weight or heightened

                                              8
                       OHIO FIRST DISTRICT COURT OF APPEALS


significance, as the court must weigh them all in its analysis.” In re L.M.B. and M.A.B., 1st

Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, at ¶ 13; In re P., 1st Dist.

Hamilton Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 35 (same).

       {¶18} Turning to the juvenile court’s analysis of these factors, R.C. 2151.414(D)(1)(a)

evaluates the relationship of the child with his or her parents and siblings, and other

relevant family and caregivers who “may significantly affect the child[.]” See R.C.

2151.414(D)(1)(a). Ms. Rolfes acknowledged Mother’s appropriateness and bonding with

Z.W. during visits, but her inconsistent visitation pointed in the other direction.    At the

time of the hearing, Z.W. had lived in the same foster placement since birth and was well

bonded to his foster parents. His foster parents wished to adopt him and had already

adopted Z.W.’s sibling, who lived in the home and shared a bond with Z.W. Evidence

reflected that Z.W. was well-adjusted and meeting of all his developmental milestones. The

juvenile court duly observed that Mother’s visits went well with Z.W., but ultimately

concluded that “[Z.W.’s] interaction with his foster family is more significant than his

interaction with his [Mother].”

       {¶19} As Z.W. was approximately eight months old at the time of the hearing and

could not express his wishes, the juvenile court acknowledged that Z.W.’s guardian ad litem

(“GAL”) recommended that a grant of permanent custody to HCJFS as in Z.W.’s best

interest. See R.C. 2151.414(D)(1)(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[.]”). The GAL reiterated concerns about Mother’s failure to engage in any services

despite HCJFS’s efforts and Z.W.’s successful development with his foster family.




                                              9
                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶20} As to Z.W.’s custodial history, the evidence established that Z.W. resided in

the care of HCJFS for his entire life. See R.C. 2151.414(D)(1)(c) (requiring the trial court to

consider the custodial history of the child in making its best-interest determination).

Moreover, during that time Z.W. lived with only one family (which included his sibling) and

who planned to adopt him.

       {¶21} Under R.C. 2151.414(D)(1)(d) the court examines “[t]he 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 [HCJFS][.]” Here, the juvenile court underscored

Mother’s overall lack of progress and compliance with services. The juvenile court could not

credit Mother’s claim that she would complete case plan services even if granted temporary

custody. When questioned about her compliance regarding a previously-ordered case plan

regarding another of her children, Mother admitted that she did not comply with that plan

notwithstanding the court’s order. Ultimately, while Mother obtained stable housing and

employment, this was only part of the equation for providing a safe and secure home for her

child. See Matter of B.C., 12th Dist. Warren Nos. CA2018-03-024 and CA2018-03-027,

2018-Ohio-2673, ¶ 33 (noting that children deserve a “stable, permanent, and healthy,

home environment” free from drug use and neglect).

       {¶22} Finally, R.C. 2151.414(D)(1)(e) requires the court to consider whether any

factor listed in R.C. 2151.414(7) through (11) applies. As already noted, as Mother had her

parental rights terminated to her four other children, the magistrate and juvenile court

examined (E)(11) and found it satisfied.




                                              10
                       OHIO FIRST DISTRICT COURT OF APPEALS


                                            III.

       {¶23} Based on the foregoing, clear and convincing evidence supported the juvenile

court’s finding that a grant of permanent custody to HCJFS was in Z.W.’s best interest.

Therefore, we also find that the decision was not against the manifest weight of the

evidence.   We accordingly overrule Mother’s sole assignment of error and affirm the

judgment of the juvenile court.

                                                                     Judgment affirmed.

CROUSE and WINKLER, JJ., concur.

Please note:

       The court has recorded its own entry this date.




                                             11
