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In re S.K.

Court of Appeals of Ohio, Second District

August 7, 2009

IN THE MATTER OF: S.K.

(Civil appeal from Common Pleas Court, Juvenile Division) T.C. NO. 2007-1930

ROGER A. WARD, Atty. Reg. No. 0065394, Attorney for Plaintiff-Appellee.

JON PAUL RION, Atty. Reg. No. 0067020, Attorney for Defendant-Appellant.

OPINION

DONOVAN, P.J.

{¶ 1} This matter is before the Court on the Notice of Appeal of H.K., filed March 13, 2009. H.K. appeals from the judgment of the Clark County Court of Common Pleas, Domestic Relations Division, Juvenile Section, granting permanent custody of his daughter, S.K., to the Clark County Department of Job and Family Services ("Agency"). S.K. was born on September 11, 2007, and her mother is

H.K.'s former girlfriend, E.T.

{¶ 2} On October 15, 2007, the Agency filed a Complaint for Emergency Shelter Care, seeking guardianship of S.K. According to the Complaint, United States Marshals mistakenly went to S.K.'s home to serve a warrant, and while there they observed deplorable conditions. Inside the home were 17 cats and two dogs, and there were feces, urine and vomit all over the floors. The odor within the home was overwhelming, and the authorities observed fleas and gnats everywhere. Springfield Police officers responded, along with Agency workers, and H.K. and E.T. were arrested on charges of child endangering. S.K. was removed from the home.

{¶ 3} Agency workers observed that S.K. had diarrhea and a diaper rash so severe that she was bleeding in one area, and she was screaming in pain. S.K. was subsequently admitted to the hospital, where she was diagnosed with dehydration, thrush, acid reflux, and a urinary tract infection. She was subsequently diagnosed with hypotoma, which is a lack of muscle tone. According to the Complaint, S.K. was previously admitted to the hospital for acid reflux from October 5 - 9, 2007, and hospital staff at that time advised the Agency of their concerns regarding the hygiene and level of functioning of H.K. and E.T. A social worker met the family at the hospital on October 9, 2007, but when she attempted a follow-up visit after S.K.'s release, H.K. and E.T. denied her access to their home.

{¶ 4} Following a hearing, the juvenile court issued a Temporary Shelter Care Order on October 15, 2007, and on December 5, 2007, the court issued a Judgment Entry and Temporary Custody Order with the agreement of H.K. and E.T. A guardian ad litem was appointed for S.K.

{¶ 5} The Agency developed a case plan with the aim of reuniting S.K. with her parents. Pursuant to the plan, H.K. was to undergo a psychological evaluation, and he was to follow any recommendations set forth therein. H.K. was referred to Family Life Education for a class on cooking and cleaning, and the plan provided that he would use his new skills to provide a clean and safe living environment for S.K.. The case plan provided for H.K. to attend scheduled visitations with S.K., and H.K. was also to attend all of the child's doctor and physical therapy appointments.

{¶ 6} On October 17, 2008, the Agency filed a Complaint and Motion to Modify Temporary Custody to Permanent Custody, after concluding that H.K. and E.T. were unable to meet S.Ks needs.

{¶ 7} A hearing was held on February 6, 2009. E.T., who had left town in August, 2008, did not attend. Dr. Daniel Hrinko, an expert in the field of clinical forensic psychology, testified regarding the psychological evaluation he performed on H.K. According to Hrinko, H.K. failed to cooperate with the assessment process. When Hrinko attempted to administer the Minnesota Multiphasic Personality Inventory, in which H.K. simply had to indicate true or false answers to questions, H.K. "randomly answered items without regard to location on the page or matching item numbers with response numbers." When Hrinko stopped H.K., instructed him again on the test and reminded him of its importance as part of his case plan, H.K. began the test again but left without completing it. To complete the evaluation, Hrinko "was forced to rely on collateral information, my own observations and professional judgment."

{¶ 8} Hrinko testified that H.K. receives Social Security benefits for mental health problems, and he determined H.K. "to be functioning in the mild range of mental retardation." H.K. reported to Hrinko that the Social Security Administration found him incapable of managing his financial affairs, requiring his mother to be his payee for his Social Security Disability benefits.

{¶ 9} Hrinko testified that H.K. is "a person with clear limitations in his educational achievement and accomplishment, as well as cognitive abilities." Hrinko stated that H.K. often exaggerates his difficulties to his own benefit. According to Hrinko, when H.K. was confronted with problems, he "consistently rationalized his actions, shifted blamed [sic] to others, or minimized the severity of the problem or his responsibility in the role. As a result, he portrayed himself as a victim consistently and felt that he had no difficulties that required changing or addressing." It was significant to Hrinko that H.K. "also has failed, at the time of my assessment, to benefit from attempts to assist him, either through not attending or dropping out of or not making use of opportunities for support, such as mental health counseling and other benefits." Hrinko further testified that H.K. has a volatile temper, and he reported that H.K. was arrested in 1999 for felonious assault, which was reduced to aggravated assault, resulting in a year in prison.

{¶ 10} The record reveals H.K. was married in 1988 and has a son, born in 1990, and a daughter born in 1992. H.K. and his wife divorced in 1992. Hrinko's report notes that H.K. has had no visitation with his older children in years. H.K. reported that his ex-wife married again in 2000 and that her new husband refused to allow H.K. to see his son and daughter. H.K. stated that his children are in foster care because of the conduct of his ex-wife and her husband. H.K. told Hrinko that he "paid the price" for his ex-wife's remarriage, and he indicated that his older children were "brainwashed" by his ex-wife and her husband into lying about him. H.K.'s daughter had reported that H.K. sexually abused her, and Hrinko testified that he assessed the daughter at one time. Hrinko testified that the older daughter described a "high level of animal feces and animal urine" in their home, and she described "having to go to school in pissy clothes, smelling of urine." According to Hrinko, there was inadequate food in the home, and "these were situations she described to me about her childhood where [H.K.] was directly involved and responsible for the conditions."

{¶ 11} Hrinko's report describes H.K. as angry and frustrated, and it notes that H.K. "expressed a strong belief that children's Services had made up their mind to prevent him from having access to his children." According to Hrinko, "As of the time that I saw Mr. [H.K.], I would feel uncomfortable having any child in his care."

{¶ 12} Kathryn Boyle, a developmental specialist who had been working with S.K. for almost a year and a half at the time of trial, testified about S.K.'s developmental delays. According to Boyle, S.K. was evaluated in the areas of cognitive development, motor development, language development, self help development and social development, and she was "delayed in all areas."

{¶ 13} Boyle testified that H.K. and E.T. had visitation with S.K. at Gibault Visitation Center, and she met with them several times to teach them how to work with S.K. in order to increase her developmental skills. According to Boyle, regarding H.K.'s interactions with S.K., her "strongest impression was that he didn't understand, or that he was not physically able to do the things that I was asking him to do. He didn't offer to do the things that I asked him to do." Boyle testified, "People who have low muscle tone will always have issues to deal with. And you always need to have someone caring for her who will keep medical appointments, who will look for interventions, * * * on a regular consistent basis, work with a child so that they can maintain their skills." Boyle maintained that S.K. would need someone to work with her on a daily basis, and she did not believe that H.K. would be a fit and capable custodian for S.K.

{¶ 14} Jennifer Ricketts, a visitation coordinator at Gibault Visitation, testified that she supervised H.K.'s and E.T.'s visitations with S.K. and prepared summaries of the visits. According to Ricketts, H.K.'s visits were "at a level one, " which means that he was never allowed to be alone with S.K. Rickets testified that, while H.K. would perform the recommended exercises with S.K. if prompted, he would not do them without prompting. Ricketts also noted that a total of 61 visits were scheduled for H.K., and that he cancelled 15 of them.

{¶ 15} Officer Anna Fredendhall of the Springfield Police Department testified that she photographed the conditions of S.K's home at the time of her removal. According to Fredendhall, "there wasn't really a place for the baby to sleep. * * * the crib was full of clothes. * * * there [were] old bottles sitting out." Fredendhall noted there were "a lot of cats, " the litter boxes were dirty, and there were feces all over the floor.

{¶ 16} T.K., S.K.'s foster mother, testified regarding S.K.'s progress, stating that "she is pretty much on target physically and developmentally." She stated that S.K. still had caregivers coming to her home to help her with her exercises, and "[t]hey feel that it would be a lifelong [sic] to help make her core stronger." When asked if it was necessary to make various medical appointments for S.K., T.K. responded, "Many, many." She stated that S.K.'s parents were invited to all of her appointments at every team meeting, but that "[f]or the appointments down at Children's, they made approximately half. For the physical therapy, which was done locally, they came less than half."

{¶ 17} Brenna Theiss, a social service worker with the Agency testified that she received S.K's case in June, 2008, after a previous social worker left the Agency. Theiss stated that the Agency had substantiated claims of sexual abuse and neglect against H.K. involving his other children. She also noted that physical abuse of those children had been "indicated." According to Theiss, "[H.K.] refused to cooperate with the investigation; and therefore, no charges were filed." She stated that H.K.'s older daughter is in a permanent planned living arrangement, as was his son, until he turned 18 years of age.

{¶ 18} Theiss described H.K.'s attendance at physical therapy sessions for S.K. as "sporadic, at best." When asked about H.K.'s ability to care for S.K., Theiss responded that she has "numerous concerns about his ability to care for [her]. * * * My concern is that his understanding of child development is very limited. And especially her being a special needs child who has needed such rigorous care in the foster home and had so many appointments, evaluations, assessments, that he would not be able to meet those needs."

{¶ 19} Theiss further testified that she arranged transportation for H.K. to attend S.K.'s appointments and wrote down the dates for him, and "on multiple occasions I became frustrated when he would not attend [appointments]. * * * And then when addressed at the team meeting, he said he would do better the next month. And the next month it would be the exact same situation, missed appointments, [transportation] provided, knowledge of the bus system." According to Theiss, "we have provided the family everything we could have" to promote reunification.

{¶ 20} At the time of the trial, H.K. was residing at Cole Manor, an apartment complex that does not allow children. Theiss visited the apartment on two occasions, and while it was clean, she "expressed a great deal of concern because there was an ...


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