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In re N.Q.

Court of Appeals of Ohio, Second District

July 19, 2013

IN RE: N.Q., D.C., H.C. and D.F.

(Civil Appeal from Common Pleas (Court - Juvenile Division) Trial Court Case Nos. JC2009-10396, JC2009-10398, JC2009-9915, JC2009-9917

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for MCCS-Appellee

DARYLE C. TIBBS, Attorney Reg. No. 0085935, Attorney for P.F.-Appellant

DAWN GARRETT, Atty. Reg. No. 55565, Attorney for Minor Child H.C.-Appellee

Representative for PAUL GILBERT, Atty. Reg. No. 10129, Guardian ad Litem for Minor Children - N.Q., D.C., H.C. and D.F.



{¶ 1} Appellant, P. F., appeals from a judgment terminating her parental rights and granting permanent custody of her minor children, N.Q., D.C., H.C., and D.F. to the Montgomery County Children Services (MCCS).[1] P.F. contends that MCCS failed to prove by clear and convincing evidence that it made diligent efforts to reunify the children with her. P.F. further contends that MCCS failed to prove by clear and convincing evidence that reunification is not possible within a reasonable period of time.

{¶ 2} We conclude that the record contains sufficient clear and convincing evidence that an award of permanent custody to MCCS is in the best interests of N.Q., D.C., H.C. and D.F., and that they cannot be placed with either parent within a reasonable time or should not be placed with either parent. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In early November 2009, MCCS filed a complaint for abuse and dependency, alleging that P.F.'s minor child, D.C., had a large bruise on his forehead and a laceration on his finger, and that P.F. had no explanation for the injury. D.C., who was a little over two years old, had been admitted to Children's Medical Center due to possible abuse. D.C. was also below normal height and weight for his age, suggesting failure to thrive, and he appeared developmentally delayed. The complaint indicated that P.F. had said that she was unable to care for her children due to her mental status, that she had gone to Miami Valley Hospital on October 30, 2009, to be admitted for mental health problems, and that she had been referred to Crisis Care. P.F. reported crying daily and had hit herself over the head with a B.B. gun. P.F. had four children, including D.F. (male, d.o.b. 1/8/2002); H.C. (female, d.o.b. 7/4/2005); D.C. (male, d.o.b. 5/9/2007); and N.Q. (female, d.o.b. 1/8/2009). At the time the complaint was filed, P.F. was twenty-two years old.

{¶ 4} Dependency complaints were filed regarding the three remaining children, and MCCS was granted temporary custody of all four children in November 2009. The children were then placed in foster care.[2]

{¶ 5} Care House monitored the case for the first several months, and then MCCS caseworker, Sherree Spence, took over in February 2010. Spence met with P.F., and made sure that she had a copy of the case plan that Care House had prepared. Spence also prepared another case plan, with the same objectives, and gave it to P.F. The elements of the case plan were explained to P.F. many times. They included: (1) obtaining and maintaining stable and legal income and housing; (2) completing a drug and alcohol assessment and following all recommendations; (3) having a parenting/psychological assessment, and following recommendations, particularly regarding past abuse so that it does not interfere with the ability to parent her children; (4) visiting the children on a regular basis consistently; (5) providing relatives who could possibly take care of the children; and (6) obtaining domestic violence education.

{¶ 6} The drug and alcohol assessment was a concern because P.F. had admitted to regular marijuana use. In this regard, MCCS made two referrals. The first was to Crisis Care in November 2009. After an assessment, Crisis Care sent P.F. to Day-Mont for treatment. P.F. was supposed to get group therapy twice a week for mental health and drug treatment. She was also supposed to have an individual session once a month. P.F. attended two group sessions in November, seven in December, and one on January 4, 2010, during which she had a panic attack and had to be escorted out of the group. She did not return to Day-Mont after that.

{¶ 7} When P.F. spoke with Spence in April or May 2010, P.F. said that she was still engaged in services at Day-Mont. However, this was untrue, as Day-Mont informed Spence that P.F. had not been seen since January 2010. P.F. also had three drug screens at Day-Mont - one in November 2009 and two in December 2009. The first and third screens were positive for THC.

{¶ 8} In April 2010, MCCS referred P.F. to Dr. Richard Bromberg for a psychological and parenting assessment. Bromberg clinically interviewed and psychologically tested P.F. on April 26, 2010. The tests and checklists that Bromberg administered included: the Personality Assessment Inventory; the Substance Abuse Subtle Screening Inventory; the Parenting Stress Index; the Axis II Personality Checklist; and the Child Abuse Potential Inventory (CAPI). Bromberg also gave P.F. a parenting questionnaire and conducted a mental status examination.

{¶ 9} P.F. told Bromberg that she had marijuana in her system at the time of their interview. She also said she had been involved with MCCS three times previously - twice about physical abuse of her children, and once regarding an incident in which one of the children was left at a mental institution with her.

{¶ 10} P.F. stated that she had never been employed and that her stepfather took care of her completely. In addition, she said she had experienced panic attacks since the age of nine, which is when Children Services took her away from her own mother due to physical abuse. P.F. made serious suicide attempts by cutting herself at ages 11, 14, and 16, and was treated for panic attacks and depression at Grandview Hospital at age 18. P.F. also told Dr. Bromberg that she had been diagnosed as bi-polar, and had out-patient treatment at Miami Valley Hospital at age 20.

{¶ 11} Furthermore, P.F. reported daily mood swings and said that the most minor thing could make her snap. She said she could be violent, and that when her emotions would get "messed up, " she could have blackouts, which would involve her destroying things, putting holes in walls, and ripping down doors. P.F. also reported anxiety and rated both her anxiety and depression at a very high level - nine out of a possible 10.

{¶ 12} Subsequently, Bromberg observed P.F. during a visitation with the children. He noted that two children had real difficulty during the visitation, and some of the children were not responsive to P.F.'s attempt to set limits. Based on the tests, interview, and observations, Bromberg diagnosed P.F. as having bipolar disorder, cannabis abuse, anxiety disorder, and a somatization disorder, which was a preoccupation with her health conditions and pain. Bromberg concluded that P.F. was in a serious mental state and needed a great deal of assistance. He also noted that she showed a high level of stress, anxiety, paranoia, and personality disorder, and fit the criteria for having a substance abuse disorder.

{¶ 13} In addition, P.F. scored 200 points higher than the 164 point cutoff score of the CAPI. This test represented P.F. as someone who was really in the "danger zone" when around children. Bromberg stated that the high cutoff score, together with the additional tests he performed, presented concern over P.F.'s reunification with the children, as related to child abuse.

{¶ 14} Dr. Bromberg made the following recommendations for P.F.: (1) evaluation by a psychiatrist for use of psychotropic medication; (2) individual counseling for 12 to 24 months; (3) outpatient drug treatment and active involvement in two to three Alcoholic Anonymous or Narcotics Anonymous meetings per week; (4) random drug testing; and (5) parent education classes. Bromberg expressed concern over P.F.'s ability to pay attention or to participate in parenting classes due to problems with concentration, ability to focus, and patience.

{¶ 15} In April 2010, Spence also referred P.F. to the Consumer Advocacy Model (CAM) program, which was a dual-diagnosis program. P.F. first went to CAM in mid-June 2010 and began treatment in July 2010. Drug and alcohol counseling was recommended, and P.F. was scheduled for group work once a week and for individual counseling once a week. There were three levels that P.F. was supposed to complete, which would normally take five to six months.

{¶ 16} Both P.F. and her counselor described her attendance at CAM as "sporadic." At the time of the custody hearing, P.F. still had 16 to 17 weeks remaining before she could possibly complete her treatment program. If P.F. had consistently attended treatment, she would have been done by the time of the hearing. P.F. gave various excuses for failing to attend, including that she was not feeling well, was "running late, " or did not have transportation. Both CAM and MCCS provide bus tokens, but P.F. refused to ride the bus, telling her caseworker that her ex's family hated her and was gang-related. She was afraid that his family would see her and kill her.

{¶ 17} During her own testimony, P.F. denied being afraid of people who are in gangs. She testified that she didn't like the environment on the bus, and that other people from her past, being younger, did not like her. She also said she often saw the man against whom she had filed a protection order. However, P.F. later admitted that she had seen him only once on the bus, two or three years previously.

{¶ 18} At the final custody hearing in April 2011, P.F. admitted that she had used marijuana pretty consistently since her children entered foster care in November 2009. While in the CAM program, P.F. had two clean urine scans in August and September, 2010, but thereafter, drug tests were positive, and P.F. also acknowledged using marijuana.

{¶ 19} P.F. saw a psychiatrist at CAM and was prescribed Zoloft and Trazodone to help with her anxiety, sleep, and depression. MCCS was waiting for P.F. to complete substance abuse treatment with CAM before referring her for further mental health treatment, because she could not receive treatment from two different providers at once. However, P.F. never progressed beyond the initial stage of the three stages of substance abuse treatment.

{¶ 20} MCCS felt that domestic violence education was important because all of P.F.'s significant relationships had been violent toward herself or her children. MCCS referred P.F. to Artemis sixteen times for domestic violence education, but P.F. never went. The education involved as little as four weekly classes, and could have been completed in a month. P.F. did not sign up for the classes because she did not think she needed them. She also stated that signing up always "slipped" her mind, and that she would sign up if she could just remember. Trial Transcript, Volume III, p. 473.

{¶ 21} Regarding the case plan objective of consistent visitation, P.F. was scheduled for two hours of visitation per week. She was required to show up for visits one hour early because several visits had either begun late or were canceled very late, or P.F. simply did not show up at all. There were also issues with P.F.'s mother, who drove her to visits. P.F.'s mother was obviously under the influence of some kind of substance and had difficulty walking and standing upright. Because of this issue, MCCS ultimately had to ban P.F.'s mother from its grounds. When the caseworker, Spence, told P.F. that her mother would have to leave, P.F. began screaming and became hysterical at the visitation center, stating that Spence could not tell her that her mother could not attend visits, and that her mother would be there whether Spence liked it or not.

{¶ 22} In addition, P.F. spent most of her time at visits with the older two children, H.C., and D.F. P.F. demonstrated a lot of animosity toward her older daughter, H.C., and spent a lot of time yelling at her and calling her names. P.F. was also very adamant about demanding physical affection from her children and having them tell her that they loved her. When H.C. refused, P.F. would become very upset with H.C, calling her a traitor, stating that she didn't love H.C., and that H.C. was not her child. Trial Transcript, Volume II, p. 269. Spence described P.F. as being frequently overwhelmed during visitation, and as having problems with supervising, acknowledging, and bonding with the children.

{¶ 23} The visitation department conducted a visitation assessment between March and May 2010. On the first visit, Mindy Norris, a social program specialist, was present for the last 40 minutes. During this time, P.F. spent the last half-hour cleaning. This was consistent during every visit. P.F. included the older children in the cleaning, but ignored the younger children. She also complained in front of the children about the foster families. In addition, P.F. broke out in loud, exuberant song at almost every visit, which did not appropriately fit some situations. Norris also noted that P.F.'s mood was changeable, switching from being energetic and happy to suddenly scolding and telling one of the ...

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