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In re R.M.

Court of Appeals of Ohio, Fourth District

August 14, 2013

IN THE MATTER OF: R.M., M.M, D.M., B.M., ADJUDICATED NEGLECTED AND DEPENDENT CHILDREN.

CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION

COUNSEL FOR APPELLANT: James A. Wallace,

COUNSEL FOR APPELLEE: Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

(¶ 1} This is an appeal from Athens County Common Pleas Court, Juvenile Division, judgments that awarded Athens County Children Services (ACCS) permanent custody of R.M. (born May 2, 2006), M.M. (born July 27, 2007), D.M. (born October 27, 2008), and B.M. (born June 14, 2011).

(¶ 2} CM., the children's natural mother and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT'S DETERMINATION THAT GRANTING PERMANENT CUSTODY TO ATHENS COUNTY CHILDREN SERVICES WAS IN THE CHILDREN'S BEST INTERESTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE" SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO GRANT PERMANENT CUSTODY OF B.M. TO ATHENS COUNTY CHILDREN SERVICES."

(¶ 3} On November 3, 2010, ACCS filed complaints that alleged appellant's three children, R.M., M.M., and D.M., all with different biological fathers, were abused, neglected and dependent and requested temporary custody.[1] Appellee also requested emergency custody of the children.

(¶ 4} The complaint alleged that an ACCS caseworker responded to appellant's home after receiving reports that appellant's children, then ages 4, 3, and 1, were outside and unsupervised. When the caseworker arrived at appellant's home, she observed that the home was filthy and that the one-year old child looked dirty. A few days later, the caseworker returned to the home and observed that D.M., the one-year old child, had a dirty face, that R.M.'s face and hands were covered in old Spaghetti O's, and that M.M. was naked and appeared to have old feces stains on her buttock and inner thighs. The caseworker returned to the home the next day and observed diapers with feces located in the first floor bathroom, and additional feces-filled diapers in the upstairs bathroom. In the upstairs bathroom, the caseworker also observed feces on the floor.

(¶ 5} In September 2010, ACCS received reports that appellant's children were constantly outside unsupervised, and that construction workers in the area had to be careful when operating equipment in order not to harm the children.

(¶ 6} On November 2, 2010, ACCS received yet another report that appellant's children were outside unsupervised for approximately 45 minutes in thirty- to forty-degree weather. The report indicated that the children were wearing diapers and not properly dressed for the weather (R.M. wore a pajama top and a dirty diaper; M.M. wore a shirt, thin pants, and did not have shoes; and D.M. wore only a dirty diaper). When the ACCS caseworker arrived, she discovered that appellant had been asleep in her bedroom. Appellant subsequently was arrested for child endangerment.

(¶ 7} On December 15, 2010, the trial court adjudicated the children neglected children. On January 18, 2011, the court awarded ACCS temporary custody of the three children.

(¶ 8} On June 14, 2011, appellant gave birth to her fourth child, B.M., fathered by yet another man. On June 16, 2011, the trial court awarded ACCS temporary emergency custody of the newborn child. On June 20, 2011, ACCS filed a complaint that alleged B.M. to be a neglected and dependent child. The court subsequently adjudicated B.M. a dependent child and awarded ACCS temporary custody of B.M.

(¶ 9} On June 13, 2012, appellee filed a motion to modify all four of the children's dispositions to permanent custody. On September 18, 2012, and continuing on October 12, 2012, the court held a permanent custody hearing. During the hearing, appellant asserted that the trial court lacked jurisdiction over B.M.'s case. She claimed that because she gave birth to B.M. in Kentucky, he was not an Ohio resident and an Ohio court did not have jurisdiction to issue a custody decision regarding B.M. The court delayed ruling on the jurisdictional argument to provide ACCS the opportunity to respond.

(¶ 10} Former ACCS caseworker Katie Murphy testified that she worked with appellant from August 2010 to November 2011. Murphy stated that appellant initially worked with ACCS on a voluntary basis and agreed to a safety plan. The safety plan required appellant to properly supervise the children, change the diapers when needed, and maintain a clean home. Murphy testified that ACCS referred appellant for mental health counseling, provided parent-mentor services, conducted home visits, provided transportation, and took appellant and the children to the doctor. Murphy stated that after the safety plan had been in effect for less than one week, ACCS removed the children pursuant to an emergency custody order because appellant failed to properly supervise the children.[2]

(¶ 11} Murphy testified that after ACCS received custody of the children, appellant lost her subsidized housing and moved in with her father and grandmother. Murphy stated that appellant continued to reside there until October or November 2011. When Murphy visited the home, she did not notice any bedrooms available for the children. Murphy stated that appellant eventually obtained HUD-approved housing that appeared to be adequate for the children.

(¶ 12} Murphy explained that ACCS developed a case plan for appellant that required her (1) to attend visits with the children, (2) to attend mental health counseling, (3) to obtain housing, and (4) to obtain her GED. Murphy testified that she attended appellant's first mental health counseling session. She later learned that appellant was prohibited from returning to the counseling center for six months. ACCS then arranged counseling services through another provider.

(¶ 13} Murphy stated that appellant did not obtain her GED during the time that Murphy worked with appellant, despite Murphy's recommendation that appellant need not complete work requirements but, instead, simply work on obtaining her GED. Murphy testified that appellant did not have work and that government benefits and food stamps were her sole source of income.

(¶ 14} Murphy also explained that appellant had problems with transportation, so ACCS arranged cab services to transport appellant to visitations with the children. Murphy stated that twice in 2011 when the cab arrived to pick up appellant, appellant was unavailable. Murphy explained that she requested appellant to sign an agreement that she would receive cab services under a probationary period and that if she missed one more transport, ACCS would revoke the services. Murphy testified that appellant nevertheless missed another cab pick-up and on March 11, 2011, ACCS terminated appellant's cab privileges. Murphy stated that ACCS reinstated appellant's cab privileges on June 21, 2011, but revoked them again on June 30, 2011. Murphy explained that she and other ACCS caseworkers provided transportation to appellant as their availability allowed.

(¶ 15} Integrated Services licensed social worker Amy Smith testified that she began working with appellant in May 2010. Smith stated that appellant initially was referred to Integrated Services for assistance finding housing. Smith helped appellant find subsidized housing after appellant lost her prior subsidized housing due to the children's removal. Smith stated, however, that the new subsidized housing depended upon appellant having custody of the children.

(¶ 16} Smith also worked with appellant to increase her "self-sufficiency, skill-building * * * her motivation, [and] her self-esteem." Smith stated that appellant appeared engaged in the services and that appellant had looked for employment and even appeared "excited" about finding a job.

(¶ 17} Appellant testified that she initially contacted ACCS for assistance finding housing for her and the children. She further requested help to transport the children to doctor appointments. Appellant stated that ACCS caseworker Murphy helped her clean the house because appellant was unable to clean the house and supervise the three children at the same time. Appellant stated that she tried to ensure that the children would not leave the house unsupervised, but testified that the oldest child was able to open the doors. She stated, however, that the children were never left outside unsupervised for very long. Appellant explained that on the date ACCS initially removed the children, she had been upstairs cleaning and R.M., the oldest child (who was approximately four years old at the time) asked if he could go outside to retrieve his truck. Appellant told him that he could retrieve the truck as long as he came back into the house. She stated that she did not leave him unsupervised because she could see him from the upstairs window. She saw the other two children outside with R.M. and "kn[e]w that they was [sic] just going to grab that truck and bring it back in." Appellant testified that five to ten minutes later, one of her neighbors came over and told her that ACCS "had been called because my kids were outside."

(¶ 18} Appellant stated that she went to Tri-County Mental Health pursuant to ACCS's request. She also admitted that she missed three visits and that TCMH then placed her on probation for six months.

(¶ 19} Appellant stated that when ACCS initially removed the children, she lost her subsidized housing and moved in with her mother and grandmother. In October 2011, appellant obtained new subsidized housing where she remained for approximately nine months. Appellant explained that she eventually lost that subsidized housing because she did not have custody of the children and because ACCS did not permit home visits with the children. At that point, appellant moved in with her fiancé's family.

(¶ 20} Appellant stated that she did not understand why ACCS would not permit home visits because she believed that she did "everything" that the case plan required her to do. She admitted, however, that she did not consistently attend visits with the children and that she requested ACCS to drop the one visit per week she had scheduled with the newborn child, B.M. Appellant testified that ACCS claimed she failed to change the children's diapers as needed. Appellant stated, however, that she believed she complied with the diaper checklist that ACCS caseworkers provided. She testified that she changed the diaper at least once over the course of the two-hour visit and that the child "only needed changed once or twice." Appellant explained that ACCS requested that she change the diaper at least twice per visit. Appellant stated that she then began changing the diaper twice.

(¶ 21} Appellant testified that she brought diapers to the visits as ACCS requested, but admitted that she did forget on some occasions. She stated that when B.M. was a newborn, she brought formula for him. Appellant explained that ACCS informed her that she brought the wrong formula and threw it away. She stated that ACCS then gave her a container of the proper formula so that she would know which type to bring on the next visit. Appellant claimed that she would bring this same formula to the next visit, but ACCS would tell her it was the wrong one. At that point, appellant "gave up." Appellant stated that ACCS kept changing the type of formula due to "digestible issues."

(¶ 22} Appellant further explained that once B.M. was a little older, she brought baby food instead of formula because she only had $100 on her food stamp card and his formula cost about $20. She explained that she also needed to use the $100 to purchase food for the other three children.

(¶ 23} Appellant stated that in the summer 2011, she passed a GED pre-test and that she only needs to pay $4 to take the test to complete her GED. Appellant testified that she has not yet taken the test because she does not think she is ready.

(¶ 24} Appellant explained that she attempted to enroll at Hocking College, but discovered that she would need her GED to graduate. She stated that she went to Hocking College for three months, then dropped out.

(¶ 25} Appellant testified that she presently lives with her fiancé, her fiancé's mother, her fiancé's step-father, and her fiancé's grandfather. She stated that the children could live with her and her fiancé's family. Appellant explained that the ACCS caseworker visited the home once.

(¶ 26} Appellant testified that she and her fiancé are in the process of fixing up a trailer and will be moving into it next month. Appellant believes that with her fiancé in her life, she will be able to supervise and care for the children properly.

(¶ 27} Tri-County Mental Health counselor Micki Lamb stated that she began counseling R.M. in January 2011. She explained that she has helped R.M. cope with the adjustment to foster care, manage anxiety, and build social skills. Lamb also testified that R.M. had "a lot of aggression toward his siblings." She stated that R.M. has improved since he began counseling. Lamb diagnosed R.M. with "at least partially largely resolved post traumatic stress and * * * attention deficit hyperactivity disorder." She explained that she also is trying to "rule out * * * any other particular mood disorder." Lamb stated that R.M. still has anxiety about the state of uncertainty regarding his home life.

(¶ 28} Lamb explained the type of home life R.M. needs: "He would need structure. He would need consistency. He would need a warm consistent environment. He'd need to know that if he was distressed somebody could help him. He'd need somebody that could coordinate with the schools to make sure that behavior plans and things like that were being followed through on."

(¶ 29} John Patterson, one of the children's foster parents, stated that the children have lived continuously in his home since their removals. He explained that when the children first entered the home, R.M. had behavioral issues and R.M. and M.M. had problems with their teeth. Patterson testified that R.M. had two healthy teeth in his mouth, four had to be pulled, some were filled, and others were capped. He stated that M.M. had four teeth pulled and four fillings. Patterson further explained that the children had skin conditions. R.M. and M.M. both had a fungus infection on their bottoms, and D.M. had a boil. He stated that the children also had not received all of their immunizations.

(¶ 30} Jennifer Pinney stated that she was appellant's parent-mentor from September 2010 to March 2012. She explained that the concerns were as follows: (1) appellant did not properly supervise the children; (2) appellant did not provide proper basic care for the children; (3) appellant did not change diapers when needed; and (4) appellant did not have sufficient food in the home. Pinney testified that appellant did not remedy any of the concerns. She stated that ACCS purchased diapers and talked to appellant about nutrition, but "nothing was being done." Pinney testified that appellant did not want to work on any goals-appellant told Pinney, "I don't do goals." Pinney stated that she tried to establish duties for appellant to follow each visit, but appellant stated "that she was not establishing even a duty."

(¶ 31} Pinney explained that during the supervised visitations, she never observed appellant make any progress in being able to change the children's diapers when needed. She stated that ACCS repeatedly discussed with appellant the need to change the children's diapers in a prompt manner, but appellant did not comply. Pinney testified that before the children were removed, "there was feces coming out of the side of the diaper and we were having the same issues during visitation even when a visitation worker would tell her that the child's diaper needed changed it wouldn't be changed."

(¶ 32} Pinney further explained that she did not see appellant provide the children with nutritious food, but instead, noticed that appellant gave the children candy and other "inappropriate foods." Pinney stated that ACCS encouraged appellant not to give the children candy, yet she continued to do so.

(¶ 33} Pinney additionally testified that appellant did not consistently attend her scheduled visits with the children. She stated that between October 26, 2010 and September 27, 2012, appellant had 188 scheduled visits and appellant, but did not appear for thirty-three visits and canceled nineteen. Pinney explained that the missed and canceled visits did not include the time when ACCS removed her from the "visitation board" between March 2, 2012 and May 14, 2012. Pinney stated that between February and May 2012, appellant had only three visits.

(¶ 34} Pinney testified that on March 9, 2012, she terminated the parent-mentor services because appellant missed multiple visits and displayed a significant lack of progress. She stated that appellant "refused to implement suggestions and direction given to her by the parent/mentor." Pinney explained that ACCS informed appellant that she should not "prop the bottle" when feeding B.M., that she should change the diaper without prompting, and that she should brush the children's teeth during visitation. Pinney stated, however, that appellant made no progress toward these goals. Pinney explained that she (1) requested appellant to bring diapers for B.M., but she did not; and (2) requested appellant to bring formula for B.M., but she would bring the wrong formula, expired formula, or she did not bring it at all. Pinney testified that despite all of the prompting and encouragement that ACCS provided to appellant, appellant has yet to demonstrate that she can consistently provide for the children's basic needs, even during supervised visitations. Pinney also stated that appellant had some positive interactions with the children: (1) appellant read to them; (2) they showed affection for one another; and (3) appellant provided appropriate meals for the children. She further explained, however, that appellant was unable to engage in these positive interactions on a consistent basis.

(¶ 35} Pinney testified that she did not believe that B.M. had bonded to appellant. She stated that B.M. "[o]ften times * * * sits during visitation away from [appellant] facing away from [appellant] in a stroller, not paying attention." Pinney further explained that appellant continues to have "some serious supervision" issues. She stated that appellant and ACCS staff members took the children to COSI in Columbus and "[i]t took two other staff members making sure that we had an eye on each one of the children because [appellant] wasn't doing, cause she would take off with one of the children and not pay attention to where the other ones were." Pinney further explained: "[Appellant] did not supervise all of her children or even try to do so[. S]he also would walk off especially with [R.M.] and just try to leave the other children and w[a]nder. The other children to w[a]nder and push [B.M.] in the stroller. [sic]"

(¶ 36} ACCS worker Mandi Knowlton testified that she did not believe that appellant properly supervised the children on a consistent basis. She explained that during one observation, she had noticed the children playing on the playground and R.M. was pushing B.M. in the stroller "kind of recklessly." Knowlton stated that she believes appellant loves her children. She explained that the children "are usually very happy to see [appellant], " and that they recognize her as their mother. Knowlton testified that during some visits, appellant read stories to the children, listened to music, and played appropriately.

(¶ 37} ACCS caseworker Kathi Vanmeter stated that she started working with appellant in December 2011. She testified that the case plan required appellant to attend visits with the children and to ensure that the children's needs were met during visits. The case plan further required appellant to (1) follow the guidelines, (2) supervise the children, (3) attend counseling for her mental health needs, (4) change diapers when ...


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