In re K.W.

• Citation: 2018 Ohio 1933,111 N.E.3d 368
• Decision Date: 30 April 2018
• Docket Number: 17CA8,No. 17CA7,17CA7
• Parties: In the MATTER OF: K.W., Adjudicated Dependent Child.
• Court: United States Court of Appeals (Ohio)

111 N.E.3d 368

2018 Ohio 1933

In the MATTER OF: K.W., Adjudicated Dependent Child.

No. 17CA7

17CA8

Court of Appeals of Ohio, Fourth District, Highland County.

DATE JOURNALIZED: April 30, 2018

J. Allyce Horne, Hillsboro, Ohio, for Appellant D.W.

Lynn W. Turner, Hillsboro, Ohio, for Appellants P.W. and C.W.

Anneka P. Collins, Highland County Prosecuting Attorney, and Molly Bolek, Assistant Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.

Kathyrn Hapner, Hillsboro, Ohio, Guardian Ad Litem.

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is a consolidated appeal from a Highland County Common Pleas Court, Juvenile Division, judgment that granted Highland County Children Services (HCCS), appellee herein, permanent custody of thirteen-year-old K.W. This matter has a long and tortured history for everyone involved in this case, but especially for the minor child. D.W., the child's biological father, raises the following assignments of error:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT'S DECISION TO GRANT PERMANENT CUSTODY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AS THE COURT ABUSED ITS DISCRETION BASED ON THE TOTALITY OF THE CIRCUMSTANCES IN SUSPENDING THE VISITATION OF FATHER, THAT THE AGENCY DID NOT MAKE REASONABLE EFFORTS IN REGARDS TO FATHER, AND THE AGENCY FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.W. COULD NOT BE REUNIFIED WITH FATHER IN A REASONABLE TIME WITH THE COURT USING EVIDENCE OUTSIDE THOSE FACTS WHICH LEAD UP TO THE ORIGINAL FINDING OF DEPENDENCY IN THIS CASE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING THE FATHER'S MOTION FOR K.W. TO UNDERGO A NEW PSYCHOLOGICAL AS HE HAS A RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION IS VIOLATED DURING A PERMANENT CUSTODY HEARING WHEN HE IS DENIED ACCESS TO

FUNDAMENTALLY FAIR PROCEEDINGS, OF WHICH, THE AVAILABILITY OF EXPERT ASSISTANCE MAY BE ONE WHEN MENTAL HEALTH IS AN ISSUE."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN RELYING ON STALE AND CONFLICTING PSYCHOLOGICAL EVALUATION AND MENTAL HEALTH ASSESSMENTS TO DETERMINE FATHER'S MENTAL HEALTH DIAGNOSIS AS WELL AS CITING AN INCORRECT DIAGNOSIS FROM THE PSYCHOLOGIST IN THE COURT'S DECISION AND THEN USING THE INCORRECT DIAGNOSIS TO JUSTIFY THE DECISION FOR PERMANENT CUSTODY."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DENYING FATHER'S MOTION TO EXCLUDE THE GUARDIAN AD LITEM'S REPORT FROM TESTIMONY AS THE GUARDIAN AD LITEM FAILED TO MEET THE DE MINIMIS REQUIREMENTS OF SUPERINTENDENCE RULE 48."

{¶ 2} Also, the child's paternal grandparents, P.W. and C.W., raise the following assignments of error:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ABUSED ITS DISCRETION PROCEDURALLY DURING THE PERMANENT CUSTODY HEARINGS, CONSTITUTING PREJUDICIAL ERROR."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THAT THE AGENCY HAD MADE REASONABLE EFFORTS TO REUNIFY THE CHILD WITH HER PARENTS AND/OR GRANDPARENTS."

{¶ 3} K.W. has been the subject of a custody dispute since 2010, when the child's mother left the child with the parental grandparents. Father later filed a complaint and requested the child's legal custody. The trial court ultimately found the mother and the father to be unsuitable, and placed K.W. in the paternal grandparents' legal custody.¹

{¶ 4} The trial court found the mother unsuitable for the following reasons: (1) she relinquished custody; (2) she has not seen or contacted the child since December 24, 2010; (3) she is homeless; and (4) she is incapable of caring for the child. The court also found that the father is unsuitable and that it would be harmful/detrimental to place child in father's custody based upon the following circumstances: (1) "[b]oth parents exert an unhealthy level of control over the child which confuses the child to the extent she is fearful to exhibit any care or love for one parent in the presence of the other"; (2) "[t]he child is concerned over physical violence while in the home of her father"; (3) "[b]oth parents use Parental Alienation techniques by isolating the child from social contacts which have led to academic delays and lack of adequate medical care"; (4) the father displays a "pattern of controlling women" and an "aggressive/assertive nature"; (5) "[t]he father has isolated the child and controlled her to an extent it was detrimental to the child"; (6) the mother testified that the father "beat [her] about a dozen times" and has "threatened to kill" her if she reported him; (7) during her in camera interview, the child stated that "her father had been violent with her and that she wanted to remain with her grandparents"; (8) the father is physically abusive; and (9) the child reported seeing the father abuse the mother.

{¶ 5} The trial court awarded both mother and father supervised parenting time to be held at the Family Advocacy Center (FAC). The mother occasionally visited the child. The father had some visits with the child, but the grandparents refused to bring the child to visits for over one year. This situation persisted until 2014, when appellee filed a dependency complaint.

{¶ 6} The dependency complaint alleged that the grandparents violated the court order regarding the mother's and the father's parenting time by permitting the mother to have contact with the child outside of the FAC and by refusing to allow the father to visit the child.

{¶ 7} On September 16, 2014, the trial court adjudicated the child dependent based upon the following facts: (1) the grandparents live in a camper without running water; (2) between August 2013 and June 2014, the grandparents refused to take the child to visit the father; (3) the grandparents have allowed the child to have contact with her mother outside of the FAC, in violation of a court order; and (4) the grandparents have denigrated the father in the child's presence in an effort to alienate her affections. The court subsequently placed the child in appellee's temporary custody.

{¶ 8} On January 12, 2016, appellee filed a motion to modify the disposition to permanent custody. Appellee asserted that the child has been in its temporary custody for at least twelve out of the last twenty-two consecutive months and that it is in the child's best interest to place her in appellee's permanent custody. Appellee alleged that although the father has attended most of his visits with the child, "his behavior and demeanor toward the child during some of the visits is cause for concern." Appellee further asserted that the child "is thriving in the [foster home] and bonded with the family and other children in the home."

{¶ 9} Due to unforeseen circumstances, the trial court continued the permanent custody hearing a few times. While the permanent custody motion remained in abeyance, father filed a motion to increase his visitation time. The court subsequently granted father's request and extended time from two hours to three hours. One month later, however, the court curtailed father's visits. The court found that testimony from the child's counselor, the guardian ad litem and children services "regarding supervision of the current visits indicated that the visits are very problematic and create trauma for the child. [The father] spends a good part of his parenting time correcting or disciplining the child to the point that the child would ask the agency to terminate the visit."

{¶ 10} Appellee later dismissed its permanent custody motion and filed a new dependency complaint that involved the child. The new complaint alleged that although father regularly visited the child, he has not had any visits outside of the FAC since April 2011. Appellee further asserted that family counseling is a case plan objective, but that it has not yet occurred. Appellee requested the court to grant it temporary custody of the child.

{¶ 11} On October 7, 2016, father admitted dependency and the trial court adjudicated the child dependent. The court (1) ordered the child to remain in appellee's (HCCS) temporary custody pending further hearings, and (2) found that appellee used reasonable efforts by providing case management services.

{¶ 12} The case plan that appellee developed indicated that the father "has been involved in several criminal cases regarding drugs and domestic violence. The relationship between [the father] and his parents, [the paternal grandparents], is basically non-existent. [The child] is constantly being put in the middle of [their] altercations, which is making her very confused as to what to do or say to both parties." The case plan stated that the father "will no longer use illegal substances" and "will learn how to cope/respond to unexpected stressors." The case plan required him to submit to random drug screens, sign necessary releases, inform appellee of any address or phone number changes, make himself available for monthly, face-to-face contact with appellee, call his caseworker to inquire about all appointments for the child, and "begin/complete counseling services as recommended by Bobbie Hopes." The case plan also stated that the "[c]aseworker will make a referral for services at an agency-approved provider."

{¶ 13} On November 1, 2016, mother and the grandparents admitted dependency. The trial court again adjudicated the child dependent. The parties agreed to continue the child in appellee's temporary custody for six months. Additionally, the court (1) allowed mother to have supervised visits at the FAC, (2) did not allow the grandparents to have visitation without appellee's and the GAL's approval, and (3) allowed the father to have visits with the child at the FAC that graduated to supervised visits outside of the FAC and eventually unsupervised visits outside of the FAC, subject to various conditions.² The court further found that appellee used reasonable efforts.

{¶ 14} On January 25, 2017, the GAL filed a motion to suspend father's and grandparents' visitations. She alleged that the child has expressed suicidal ideation as a result of the...