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In re S.W.

Court of Appeals of Ohio, Eleventh District, Ashtabula

April 30, 2018


          Civil Appeal from the Ashtabula County Juvenile Court, Case No. 2016 JC 0111.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, and Margaret A. Draper, Assistant Prosecutor, Ashtabula County Children Services Board, (For Appellee, Ashtabula County Children Services Board).

          Eric J. Cherry, The Law Offices of Eric J. Cherry, (For Appellant, Kenneth Wiley).


          DIANE V. GRENDELL, J.

         {¶1} Appellant, Kenneth Wiley, appeals from the judgment of the Ashtabula County Juvenile Court granting permanent custody of his child, S.W., to appellee, the Ashtabula County Children Services Board (ACCSB). The issues to be determined in this case are whether a children services agency made reasonable efforts to return a child to her home when the parent has been imprisoned and on post-release control, was unable to exercise visitation, and had not seen the child for several years; whether a child can be reunited with a parent in a reasonable time under the same circumstances; and whether trial counsel is ineffective by failing to call a witness whose potential testimony is unspecified, counsel's inaccurate objection caused the court to enter an additional finding against his client, and counsel was alleged to have provided insufficient argument as to the issue of abandonment. For the following reasons, we affirm the decision of the court below.

         {¶2} Wiley is the biological father of S.W., born January 12, 2009. Her biological mother is Amanda Callaghan.

         {¶3} On April 28, 2016, ACCSB requested ex parte emergency temporary custody of S.W., which was granted through a Magistrate's Order on that date.

         {¶4} ACCSB's Verified Complaint for Temporary Custody was filed on April 29, 2016, alleging that S.W. and her sibling, J.V., were neglected. It contended that their mother, Callaghan, was using drugs, there was little food in the home, and the children reported caring for themselves and having no adult present in the home during the night.

         {¶5} On June 9, 2016, Wiley, who requested reunification services, was added to the case plan in relation to S.W. Goals added included attending parenting classes and completing post-release control, which arose from his imprisonment on a Child Endangering conviction. The case plan also provided for supervised visitation.

         {¶6} A Magistrate's Decision was issued on June 29, 2016, which noted that Wiley had stipulated to neglect by Callaghan. S.W. was found to be a neglected child, which finding was subsequently adopted by the trial court.

         {¶7} Following a dispositional hearing, a Magistrate's Decision was issued on July 22, 2016, in which the court found that a return home would be contrary to S.W.'s best interest, that Wiley was on post-release control and there was a no contact order with S.W., and that reasonable efforts were made to return the child home. This was adopted by the trial court.

         {¶8} A semiannual administrative review document filed by ACCSB on October 27, 2016, noted that all supervised contact had to be approved by the Adult Parole Authority and that the APA "is not recommending contact between [Wiley and S.W.] due to fears that have been expressed by [S.W.]."

         {¶9} ACCSB filed a Motion Requesting Modification of Temporary Custody to Permanent Custody on February 9, 2017.

         {¶10} On April 14, 2017, Wiley filed a Motion for Visitation, noting that he had completed post-release control and would now be able to visit with S.W.

         {¶11} An Amended Guardian Ad Litem Report and Recommendation was filed on May 30, 2017. The GAL recommended that permanent custody be granted to ACCSB, noting that both children are doing well in their foster care placement. She concluded that Wiley "does not have the ability to properly care for S.W.

         {¶12} A hearing on the motion for permanent custody was held on June 1, 2017. The following testimony was presented:

         {¶13} Jenelle Schafer, an ongoing caseworker for ACCSB, has worked with S.W. and her family since May 2016. Callaghan did not meet any of the goals provided in her case plan. According to Schafer, Wiley's case plan required maintaining housing for S.W., attending parenting classes, finishing any "issues that he had with his parole, " and to have no additional criminal involvement. It also included counseling and addressing anger management concerns. Wiley completed a mental health assessment, attended counseling and parenting classes, and followed recommendations resulting from the assessment.

         {¶14} Schafer testified that Wiley had been convicted of child endangering in relation to J.V. Wiley did not have contact with S.W. as it was recommended by the Adult Parole Authority that he not have unsupervised visits with her and could not have supervised visits without their approval. Wiley has purchased items for S.W., including toys but they were not given to her because ACCSB was waiting until he exercised visitation.

         {¶15} Schafer met with Wiley approximately 11 times and noted multiple occasions when he became angry. In September 2016, he was "yelling and was throwing things around his living room and slamming furniture around and boxes." In March 2017, he came into the agency, was yelling, and made a comment that "he feels as though the Agency is going to force him into doing something that he's going to regret and he's ultimately going to be incarcerated for." He made similar comments at the agency in April 2017. Eventually, she would no longer go to his residence by herself.

         {¶16} Schafer testified that she was unaware of Wiley completing anger management classes but that he had completed other case plan requirements and was successfully discharged from parole around February 27, 2017.

         {¶17} Schafer opined that J.V. and S.W. were doing well in the foster home where they have lived since April 2016. They are bonded with each other and interact well with their foster parents, who are willing to adopt them. She believed it would not be in their best interest to be separated. Schafer was aware that an aunt and maternal grandmother had contacted ACCSB for visitation but had not requested custody.

         {¶18} Amy Bell, Wiley's girlfriend, lives with Wiley and has never been afraid of him. She was present when Schafer visited and did not see Wiley yell at her or throw things, aside from tossing a bag of school supplies. He sometimes became upset when discussing matters with the agency.

         {¶19} Wiley testified that he last saw S.W. in January 2012. He denied committing the crime of Child Endangering but conceded that he was convicted of it, based on evidence that he grabbed J.V., S.W.'s brother, by his throat and picked him up. One of the conditions of his post-release control was that he not have contact with S.W.

         {¶20} Wiley testified that he was released from prison April 25, 2015, and was designated to be on post-release control for one year, but was not successfully terminated until February 2017. He stated that the extension of parole "wasn't [his] fault" and was due to e-mail communication errors. He attended counseling relating to anger management and had been doing so for several months. He also completed parenting classes. He tried to seek supervised visits but was prevented from doing so when the therapist said S.W. was afraid of him. He believed S.W. is scared because of negative things her mother told her.

         {¶21} The GAL, Ariana Tarighati, testified regarding the closeness of the children and the negative impact of separating them. Tarighati testified that S.W. conveyed she did not want to see Wiley and ...

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