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In Re: T.G.

October 27, 2011

IN RE: T.G., ET AL. MINOR CHILDREN


Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 10921556, AD 10921557, AD 10921558

The opinion of the court was delivered by: Kenneth A. Rocco, J.:

Cite as

In re T.G.,

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

BEFORE: Rocco, J., Kilbane, A.J., and E. Gallagher, J.

{¶1} Appellant Daniel Gainer, natural father of three children, "TG"*fn1 (d.o.b. January 8, 2005), "TN" (d.o.b. February 11, 2006), and "TS" (d.o.b. November 5, 2008), appeals from the order of the Cuyahoga County Court of Common Pleas, Juvenile Division, granting temporary custody of his children to the Cuyahoga County Department of Children and Family Services ("the agency").

{¶2} Gainer presents four assignments of error. He essentially argues the juvenile court's decision is not supported by the evidence in the record and, thus, constitutes an abuse of discretion.

{¶3} Upon a review of the record, this court agrees. Consequently, the juvenile court's order is reversed, and this case is remanded for further proceedings.

{¶4} According to the record, on November 10, 2010, the agency filed its complaint in this case, alleging Gainer's children to be neglected and dependent and seeking temporary custody of them. Social worker Stephen Hughes signed the attached affidavit. Therein, Hughes asserted in pertinent part the following:

{¶5} The juvenile court first declared the children neglected on October 24, 2008, "due to the parents' domestic violence, substance abuse, and mental health issues."

At that time, the court placed the children in Gainer's legal custody, with the agency's protective supervision.

{¶6} On May 14, 2010, the agency obtained an emergency order to remove the children from Gainer's custody. Gainer had an alcohol abuse "problem," which "interfere[d] with his ability to provide adequate care for the children." Although Gainer completed treatment for alcoholism in the past, he "relapsed in May 2010," which caused the need for the agency to obtain emergency custody.

{¶7} Gainer thereafter proceeded to complete the treatment "again." Gainer needed to "maintain sobriety and continue to attend 12-step meetings and random urine screens."

{¶8} Gainer and the children's mother had a "history of domestic violence with each other," both had "completed domestic violence counseling in the past, but both failed to benefit." Although Gainer obtained a civil protection order ("CPO") against the mother, she "continue[d] to have access to [Gainer's] home, including when the children have visited."

{¶9} Hughes averred that, as it did before removing the children, the agency would continue to take several actions following the children's placement with the agency in order to facilitate returning the children to their home. These actions included "[p]sychological evaluation, substance abuse treatment, psychiatric services and medication monitoring, 12-step meetings, [and] random urine screens." Hughes indicated that the children had been removed from Gainer's custody because the "[f]amily failed to benefit from the services provided."

{¶10} The record reflects the agency obtained emergency temporary custody of the children. On December 10, 2010, Gainer filed a motion seeking an order granting him legal custody of his children, "with or without supervision."

{¶11} The juvenile court conducted an adjudicatory hearing on the agency's complaint on January 5, 2011.*fn2 By that time, another social worker, Carrie Ward, had been assigned to the case. The record reflects the agency amended its original complaint during the hearing in several significant particulars.

{ΒΆ12} The amended complaint alleged that Gainer had a "history of substance abuse." (Emphasis added.) The agency deleted the portion of the original complaint that alleged Gainer's ability to care for his children was compromised by an alcohol abuse problem. The agency also deleted the portion of the original complaint that alleged Gainer failed to benefit from treatment for that problem. The agency maintained that Gainer had suffered a relapse in May 2010, but ...


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