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In the Matter of:

November 7, 2011

IN THE MATTER OF: E. J.,
[RICHARD BARNETT, APPELLANT/FATHER]
[AMY JERVIS, APPELLANT/MOTHER]. IN THE MATTER OF: K. J.,
[RICHARD BARNETT, APPELLANT/FATHER]
[AMY JERVIS, APPELLANT/MOTHER].



Appeals from Marion County Common Pleas Court Family Court Division Trial Court Nos. The opinion of the court was delivered by: Shaw, J.

Cite as In re E.J.,

OPINION

Judgments Affirmed

{¶1} Mother-appellant, Amy Jervis ("Amy"), and father-appellant, Richard Barnett ("Richard"), appeal the February 23, 2011 judgment of the Marion County Court of Common Pleas, Family Court Division, granting permanent custody of their children, E.J. and K.J., to appellee, Marion County Children Services Board ("the Agency").

{¶2} In February of 2008, Amy gave birth to twin girls, E.J. and K.J., while incarcerated at the Ohio Reformatory for Women. Shortly thereafter, the Agency sought emergency custody of the children, which was subsequently granted by the trial court. The children were placed in foster care. On March 7, 2008, the Agency submitted a case plan, which was also approved by the trial court. At this time, Richard was contacted by the Agency, notified of the children's temporary placement with the Agency, and requested to submit to genetic testing to establish paternity. The Agency offered Richard visitation with the children, but he declined until paternity was determined.

{¶3} On June 9, 2008, the children were found to be dependent based upon Amy's stipulation. As a result, the Agency's temporary custody of the children was continued. Paternity of the children was still undetermined at this time.

{¶4} The trial court ordered Richard to report to the Marion County Child Support Enforcement Agency on July 10, 2008, to complete genetic testing. Richard failed to comply with this order and did not appear for paternity testing.

{¶5} On July 30, 2008, Amy was released from prison and began attending visitation, physical therapy appointments for the children's disabilities, and court hearings.

{¶6} In September of 2008, the Agency requested the trial court terminate its temporary custody of the children, and asked that E.J. and K.J. be returned to Amy's care. The trial court subsequently granted the Agency's motion terminating the Agency's temporary custody of the children and granting Amy custody of E.J. and K.J. effective September 8, 2008. The trial court also ordered the Agency to have protective supervision of the girls during this time. The Agency developed a new case plan implementing the goals that Amy provide for the girls' basic needs, comply with mental health and alcohol and drug counseling, participate in parenting classes and abstain from drugs and alcohol and criminal activity.

{¶7} Just two weeks later, on September 22, 2008, the trial court granted emergency custody of E.J. and K.J. to the Agency based upon a motion it filed alleging that eight-month-old K.J. tested positive for opiates after swallowing a pill; that Amy was smoking crack in the children's presence; that she was leaving the girls in their car seats for long periods of time and; that she left the children home alone on one occasion. The trial court granted the Agency temporary custody of E.J. and K.J., and they were again placed in a foster home. One day later, Amy was convicted of persistent disorderly conduct in an incident unrelated to this case.

{¶8} Throughout this time, the Agency kept Richard apprised of the children's situation, including all the court dates involving the children's placement. Richard still refused to participate in the case until paternity was proven. However, he made no efforts to effectuate the completion of genetic testing.

{¶9} The Agency continued to work with Amy on the case plan and provided bus passes for her to visit the children. Amy attended 21 of 31 scheduled visits with the girls, and attended 14 of 24 of the girls' physical therapy appointments. However, Amy continued to fail random drug screens and did not abstain from criminal activity. On November 10, 2008, Amy was convicted of driving under suspension. On November 12, 2008, Amy was convicted of theft. On December 8, 2008, Amy was convicted of driving under suspension and possession of drug paraphernalia. As a result of some of these charges, Amy was incarcerated at the Multi-County Correctional Center from December 8, 2008 to January 7, 2009.

{¶10} Nearly a year after the children were born, Richard was determined to be the children's biological father in January of 2009.*fn1 Richard maintained that the delay in completing testing was due to the fact that he lived in Columbus and the children were in Marion. The Agency arranged for Richard to complete the genetic testing in Franklin County, which eventually prompted him to submit to testing.

{¶11} In April of 2009, Amy continued to test positive on drug screens and failed to complete a mental health assessment. Richard had no contact with the children even though his paternity had been established. During this time, Amy was again incarcerated in the Delaware County Jail.

{¶12} On May 1, 2009, the Agency moved for permanent custody of the children, citing that the children cannot be placed with either parent within a reasonable amount of time or should not be placed with either parent. On June 29, 2009, the trial court appointed a guardian ad-litem ("GAL") to the case.

{¶13} On August 10, 2009, Richard was appointed counsel. The trial court scheduled adjudication and disposition hearings to take place on February 1 and 2, 2010. In October of 2009, the Agency added Richard to the case plan. On December 9, 2009, Richard filed a motion requesting visitation with E.J. and K.J. At this time, Amy was incarcerated in the Ohio Reformatory for Women for a drug trafficking charge with an expected release date in October of 2011.

{¶14} On December 14, 2009, Amy also filed a motion for visitation requesting the Agency transport E.J. and K.J. to the Ohio Reformatory for Women so that she could visit with the children. In response to these motions, the trial court noted that both Amy and Richard have substantially failed to exercise parenting time with the children since they were placed in the Agency's custody in February of 2008, and have failed to comply with the case plan. Nevertheless, the trial court ordered the Agency to facilitate supervised visitation for each parent with the children. Richard's visits were to occur in Marion and Amy's at the Ohio Reformatory for Women. On January 21, 2010, Richard missed his first scheduled visitation with the children, without explanation.

{¶15} On February 1, 2010, the trial court conducted the adjudication hearing on the case. Several witnesses testified including Amy, Richard and those integral to the case plan. At the conclusion of the evidence, the trial court made a second finding of dependency with regard to E.J. and K.J.

{¶16} On February 2, 2010, the trial court conducted the dispositional hearing. The trial court concluded that because Richard was part of the case plan for only four months, he had not had an adequate opportunity to reunify with E.J. and K.J. Upon agreement of the parties, the Agency dismissed its motion for permanent custody. The trial court ordered the children to remain in the Agency's temporary custody and also ordered the Agency to continue to facilitate weekly- supervised visits with Richard and the children at the agency, and to assist Amy with having monthly-supervised visits with the children at the Ohio Reformatory for Women. Both parents were ordered to comply with the case plans. These orders were journalized in the trial court's March 12, 2010 Judgment Entry.

{¶17} After the adjudicatory hearing, Richard attempted to exercise regular visitation with the E.J. and K.J. After Richard regularly exercised his visitation, the Agency arranged for him to have weekly four-hour offsite visits with the girls. However, the Agency continued to express concern to Richard about his lack of appropriate housing for the children and his unstable income, specifically the Agency questioned Richard's ability to take care of the two-and-a-half-year-old twin girls.

{¶18} On October 19, 2010, the Agency moved for permanent custody of the children, stating that the children have been in its care for twelve or more months of a consecutive twenty-two month period pursuant to R.C. 2151.141(B)(1)(d), and that the children cannot be placed with either parent in a reasonable time or should not be placed with either parent pursuant to R.C. 2151.414(B)(1)(a).

{¶19} On January 3, 2011, the trial court conducted the dispositional hearing in the case. Several witnesses testified including Amy, Richard, the two Agency caseworkers involved in the case, the GAL for the children and the psychologist who completed a mental assessment of Richard in accordance with the case plan. On February 23, 2011, the trial court entered judgment finding by clear and convincing evidence that it is in the best interest of children to grant permanent custody to the Agency. Specifically, the trial court noted Richard's lack of commitment to completing the case plan and his achievement of the goals in the case plan which only required minimal effort.

{¶20} Amy and Richard subsequently filed their respective notices of appeal, asserting the following assignments of error.

RICHARD'S ASSIGNMENT OF ERROR NO. I

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO PROVE CLEARLY AND CONVINCINGLY THAT THE CHILDREN COULD NOT BE PLACED WITH FATHER WITHIN A REASONABLE AMOUNT OF TIME.

RICHARD'S ASSIGNMENT OF ERROR NO. II

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO PROVE CLEARLY AND CONVINCINGLY THAT IT WAS IN THE CHILDREN'S BEST INTEREST TO BE PLACED IN APPELLEE'S PERMANENT CUSTODY.

RICHARD'S ASSIGNMENT OF ERROR NO. III

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO PROVE CLEARLY AND CONVINCINGLY THAT MCCS MADE REASONABLE EFFORTS TO ELIMINATE THE CONTINUED REMOVAL OF THE CHILDREN FROM RICHARD'S HOME OR TO MAKE IT POSSIBLE FOR THE CHILDREN TO RETURN SAFELY TO RICHARD'S HOME.

RICHARD'S ASSIGNMENT OF ERROR NO. IV

THE DECISION OF THE FAMILY COURT WAS AGAINST THE MANIFEST ...


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