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In re L.R.

Court of Appeals of Ohio, Fifth District

July 15, 2013


Civil appeal from the Holmes County Court of Common Pleas, Juvenile Division, Case Nos. 10-N-115, 10-N-116


For - Appellant: CLARKE W. OWENS.


JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.


Gwin, P.J.

{¶1} Appellant-father, Leonard Rice ["Father"] appeals the March 1, 2013, judgment entry of the Holmes County Court of Common Pleas, Juvenile Court Division, which terminated his parental rights with respect to his minor children J.R. and M.R. and granted permanent custody of the children to appellee, Holmes County Department of Jobs and Family Services ("HCDJFS").


{¶2} On May 21, 2010, HCDJFS filed a Complaint in Neglect, Abuse, and Dependency for the two children, J.R. (03/01/1998) and M.R (01/11/2001). On July 7, 2010, the parties stipulated to a finding of Neglect under R.C. 2151.03(A)(3) and Dependency under R.C. 2151.04(C), and the other sections were dismissed. Protective supervision was ordered as of July 12, 2010, with case plan at disposition.

{¶3} Melissa Fugett, former intake and ongoing worker with HCDJFS testified that she requested and received temporary custody of the children in August 2010 due to the parents' failure to begin services and failure to submit to drug screens. Both children remain in the agency's custody. Ms. Fugett, testified that Father does have a prescription for oxycodone,

{¶4} A hearing was held August 30, 2010 to review the grant of custody and served as an initial hearing on HCDJFS' motion for contempt against both parents. Both the grant of custody and the motion for contempt were based in part on the parents' refusal to submit to drug screens when requested by the agency. A second contempt motion was filed against Father in May 2011 for failure to submit to drug screens and failing to attend the individual counseling required by the case plan. At the time she filed the second contempt motion, Ms. Fugett said Father "wasn't doing drug screens, he wasn't attending visitation regularly, he wasn't, uh, seeing a counselor. He wasn't doing anything..." (T.22).

{¶5} Ms. Fugett stated that Leonard attended counseling and failed to submit to drug screens sporadically throughout the case. When Leonard did submit to drug screens he tested positive for marijuana and admitted to Ms. Fugett that he used marijuana and that he should stop. Both parents had moved from house to house during the pendency of the case. At one point, Father was incarcerated for failure to pay child support.

{¶6} Ms. Fugett was asked about visits by the parents with the children. She testified the supervised visits were "inconsistent" with lots of no-shows. She said that sometimes the parents did well but sometimes the parents were "out of it" which was evidenced by them falling asleep and slurring their words. She also testified the children noticed this behavior by their parents and were upset by it. She stated the visits were initially one-hour visits twice every week but transportation problems resulted in a change to a single visit of one and one-half hours per week. She stated the parents rarely used the entire ninety minutes. She did state that the majority of the visits by the parents at HCDJFS offices were positive visits.

{¶7} Mr. Klinger of HCDJFS testified he supervised approximately 116 visits by the parents with their children. Mr. Klingler said, "for the most part visits by [Father] have gone well." However, he noted Father fell asleep approximately five times during visits and the last of those was at least one year before the hearing date. He also stated that on one occasion, Father was slurring his speech and appeared to be under the influence and that incident was at least one year before the hearing date. Mr. Klingler stated one of the biggest problems in the visits was Father's discussion of these cases with the children. Mr. Klingler said he had to warn Father about this problem "a number of times." Mr. Klinger further testified Father was adamant that he would not lose permanent custody of his children.

{¶8} Ms. Fugett left HCDJFS in August 2012. Ms. Fugett characterized both parents as lacking motivation to change during the entire time she was the ongoing caseworker for the children (T. 8-10). She testified to numerous occasions in which both parents did not comply with the case plan requirements or failed to follow the rules of unsupervised visitation leading to the termination of such visits after only a brief period.

{¶9} Kati Vaughn, current intake worker for HCDJFS stated she assisted current ongoing worker, Luella Gilbert on occasion. Ms. Vaughn stated that she administered a drug screen to Father on November 7, 2012 (T. 57). She indicated that the screen was requested due to concerns with Father's condition at a supervised visit with his children that day or the day prior to the request.

{¶10} Joe Messner counseled Father sporadically from September 2010 until April 2012. There were 12 appointments in 19 months with 14 cancellations. (T. 89). Mr. Messner testified that Father was unable to sustain long periods of motivation and that Father's level of motivation was externally, as opposed to internally, driven which appeared to be tied to his case plan (T. 92). Father cancelled his last appointment with Mr. Messner on April 10, 2012 and indicated he would not return stating Father felt the counseling "had done as much good as it was going to do." (T. 93).

{¶11} Jackie Taylor testified that she is a caseworker for the Holmes County Child Support Enforcement Agency (T. 130). She stated that Father has only made one payment during the pendency of his case and has been incarcerated for failure to pay his obligations (T. 133).

{¶12} Roger Estill, Chief Probation Officer for Holmes County Common Pleas Court, testified that the children's mother has been incarcerated for several different drug charges during the last two and a half years (T. 164). Her most recent incarceration from August to December of 2012 was the result of a probation violation which mother admitted to theft of Father's oxycodone.

{¶13} Bridget Lemberg, lab director of Forensic Fluids, testified that Father tested positive for cocaine from the test administered by Kati Vaughn on November 7, 2012 (T. 228). Father's positive test result was admitted as State's Exhibit A.

{¶14} Luella Gilbert is the current ongoing HCDJFS caseworker assigned to the children. Ms. Gilbert testified that she began working on the case in August 2012 (T. 255). She indicated that she was unaware of any employment by Father from that point to the present (T. 274). She indicated that Father's home was adequate until Mother was released from prison in early December. Since that time, the condition of the home has deteriorated (T. 281-283). Ms. Gilbert indicated both Father and Mother have refused drug screens in December and January. (T. 271).

{¶15} Ms. Gilbert was aware that Father had re-engaged in counseling with Scott Self in October 2012. Ms. Gilbert testified Father told her he had signed back up "due to his attorney telling him that is what he needed to do to help him with his court case." (T. 276). In spite of his counseling, Father still refused to take drug screens after November 20, 2012. Ms. Gilbert testified she was present at Father's home on November 7, 2012 when Kati Vaughn administered a drug screen to Father. During this meeting, Father mentioned that J.R. requested to extend visitation to two hours. Ms. Gilbert asked Father if he wished the visits to be extended. Father stated he did not know if he could sit in the small visitation room at the agency for two hours. Ms. Gilbert told Father that it was still time he would be able to spend with his children and that Ms. Gilbert would request an additional hour be added if Father would commit to coming for that duration. Father would not commit to coming for two hours to visit his children (T. 277-278). Ms. Gilbert also noted that on the last supervised visit on the Friday prior to the hearing, Father's speech was slurred and he appeared "out of it" prompting Ms. Gilbert to inquire multiple times if he was all right (T. 279).

{¶16} Scott Self confirmed that Father had begun counseling in November of 2012 and that Father was currently in stage three of five stages of change. Father has not begun any action phase of the stages of change and currently in the planning stage (T. 108). He further testified Father needs some type of support going forward but was unable to specify what type of support because Father had not completed the exit interview as of the date of the evidentiary hearing. He indicated Father was diagnosed with Alcohol Dependency; a condition he said is more serious than Alcohol Abuse. He stated relapses for someone like Father are very common and occur more often than not.

{¶17} Ken Klingler testified that Father and Mother's visits went well with the children when the parents did attend (T. 140). Mother's incarceration precluded her from attending during large stretches (T. 144). Father would regularly miss visits and would leave visits early due to transportation problems (T. 147). Father had to be warned repeatedly not to discuss the case with his children (T. 153).

{¶18} Mark Leinbach testified about his work in counseling with J.R. He worked with J.R. for about six months after HCDJFS became involved. He stated that J.R. made significant progress and Mr. Leinbach determined further counseling was not needed. He stated J.R. made progress in dealing with the transition from home to foster care and his problem behaviors at school decreased.

{¶19} Patricia Tabereaux also testified about the progress of J.R. and M.R. She testified they are both "doing great in foster care." She said both kids are involved in a snowboarding club and J.R. is on the Merit Roll. She said she has seen both children interact with their foster parents and both kids get along well with them. She summed up her testimony by saying "[J.R.] and [M.R.] have improved a whole lot since being removed from the care of their father and mother."

{¶20} Two of J.R.'s teachers testified at the evidentiary hearing. Their testimony showed J.R. was often tired and hungry when he came to school from his parents' home. They said his work was never done and he lost a lot of weight. Their testimony was that he did not do well with structure and rules, was messy, quite often angry, obstinate and needed to be re-directed a lot. Ms. McDowell testified that while Jesse was in his parents' care during the sixth grade he "missed many days of school."

{¶21} Both teachers testified about the significant change they saw in J.R. after he was placed in foster care. They report he has gained weight, is happy, well kept, focused, has more friends and "is on the right track." They also reported his attendance is very good at this time.

{¶22} Deb Yoder, J.R.'s foster mother testified that she and her family have a strong bond with J.R. (T. 246). She indicated he is a pleasure to have in their home. She stated J.R. looks up to her three sons and is considering a career in the military after spending time with her son who is currently in the Air Force (T. 248). She also indicated that J.R. is very good with younger children and he dotes on his toddler foster sister (T. 247). She also noted that J.R. sees M.R. often as well as relatives such as Pat Tabereaux. (T. 245). Mrs. Yoder indicated she has M.R. in her home so that J.R. can visit her and the Yoder's and M.R.'s foster parents, the DeWits, take weekend vacations together (T. 243-244). Mrs. Yoder stated that it is her intention to adopt J.R. should permanent custody be granted to HCDJFS. (T. 249). She indicated M.R. was having more trouble accepting foster care, but believed "she's not old enough to understand" Ms. Yoder testified her family interacts with M.R.'s foster family on a regular basis. She reported that M.R. stays in her home about every other weekend.

{¶23} Attorney David Hunter, Guardian Ad Litem for both the children submitted a written report to the Court prior to the evidentiary hearing. He recommended HCDJFS's Motion for Permanent Custody be granted. The Court also conducted an in camera interview of the children after the conclusion of the evidentiary hearing.

{ΒΆ24} On March 1, 2013, the trial court filed Findings of Fact and Judgment Entries in each child's case, which terminated Father's parental rights with respect to his minor children and ...

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