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In re C.K.

Court of Appeals of Ohio, Eleventh District

September 3, 2013


Civil Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 12 JC 57.

Laura M. DiGiacomo, Ashtabula County Children Services Board, 3914 C Court, P.O. Box 1175, Ashtabula, OH 44005-1175 (For Plaintiff-Appellee).

Carol G. Grasgreen, 5061 Glenn Lodge Road, Mentor, OH 44050 (For Defendant-Appellant, Michael King).

Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut Street, Suite #100, Jefferson, OH 44047-1092 (For Defendant-Appellant, Ashley Gildersleeve).

Anita B. Staley, Barthol & Staley, L.P.A., 7327 Center Street, Mentor, OH 44060 (Guardian ad litem).



(¶ 1} Appellants appeal from the final judgment in a parental-rights proceeding before the Ashtabula County Court of Common Pleas, Juvenile Division. The trial court terminated the parental rights of appellants, Michael King and Ashley Gildersleeve, as to their third minor child, C.K., so that she can be placed for adoption by her present foster parents. Although maintaining separate appeals, each appellant raises the same basic argument for consideration: i.e., that the trial court's underlying findings of fact were against the manifest weight of the evidence.

(¶ 2}King and Gildersleeve have been involved in a sustained relationship for over seven years, beginning in the mid-2000's. During the majority of their relationship, King and Gildersleeve have resided together at various locations in Ashtabula County. Whenever the couple has encountered difficulties, Gildersleeve has lived for short stints with her mother, Sherri Smith, who also resides in Ashtabula County.

(¶ 3} Throughout the course of the relationship, King and Gildersleeve have had three children. Furthermore, prior to their involvement, each of them had two children with separate partners. King's two prior children resided solely with their mother, and King maintained no contact with them after their birth. However, Gildersleeve's two prior children, B.B. and C.B., initially resided with her and King when they began to cohabitate.

(¶ 4}During the entire length of their relationship, King and Gildersleeve have experienced serious problems due to their use of illegal drugs. While the nature of their use has varied over the years, at the time of the underlying action, King was taking heroin, and Gildersleeve's "drug of choice" was opiates. In trying to conquer their addictions, they have participated in treatment programs, and have been able to maintain sobriety for periods of time. For example, King was once able to stay sober for 18 months until he was involved in an automobile accident and began to take painkillers for his injuries. As a direct consequence of his drug problem, King was unable to maintain consistent employment and was incarcerated at least four times while he was involved with Gildersleeve. Although only indirectly attributable to her drug use, Gildersleeve's employment was also inconsistent, and she was once required to serve jail time based upon a criminal conviction for theft.

(¶ 5} As of February 2007, King was incarcerated, and Gildersleeve was living in Ashtabula County with her original two children, B.B. and C.B., and her first child with King, K.B. On two occasions over a two-month span, C.B. was found unsupervised and without proper clothing in the parking lot of Gildersleeve's housing development. While the matter was referred to the county children services board for investigation, the board did not take custody of any of the three children at that time. Instead, it was agreed that custody of B.B. would be given to his natural father, and custody of C.B. and K.B. would be given to the maternal grandmother, Sherri Smith.

(¶ 6} Smith's custody of K.B. lasted for four months. In August 2007, she informed the children services board that, due to her own health issues, she could only take proper care of one child, C.B. As a result, the board transferred custody of K.B. to King's mother. However, this new arrangement lasted less than a month. Therefore, in September 2007, the board instituted a custody proceeding in regard to K.B. before the juvenile court, and was immediately awarded temporary custody of that child.

(¶ 7} Within one month of taking custody, the children services board placed K.B. in a foster home. Even though the board formulated a reunification plan for King and Gildersleeve, they were unable to remedy the problem, i.e., the drug abuse, that led to the removal of all three children from Gildersleeve's home. Accordingly, in April 2009, the juvenile court granted permanent custody of K.B. to the board. K.B. was then adopted by the foster family who had custody of her during the prior 18 months.

(¶ 8} While the proceedings regarding K.B. went forward, King and Gildersleeve moved to Stark County, Ohio. There, on October 5, 2008, the couple had their second child, S.K. Since Gildersleeve tested positive for illegal drugs at the time of the birth, S.K. was immediately taken into custody by the county authorities. Fifteen months later, the Stark County family court held that S.K. was an abandoned child, and that she could not be placed with either parent within a reasonable time. Hence, the court terminated King's and Gildersleeve's parental rights over S.K.

(¶ 9} At some point, King and Gildersleeve decided to move back to Ashtabula County. On June 9, 2010, the couple had their third child, C.K. During the first 23 months of her life, C.K. remained in King's or Gildersleeve's custody. During this same time frame, the maternal grandmother, Sherri Smith, continued to have custody of C.B.

(¶10} Early in 2012, Gildersleeve was incarcerated in the county jail on her theft conviction. Consequently, King had sole custody of C.K. On the afternoon of March 29, 2012, two officers with the Ashtabula City Police Department received a reliable tip from an undercover policeman that a suspect was seen driving a motor vehicle after he had "shot up" heroin. Based upon the tip, the two officers spotted the vehicle parked at a local gas station. After initiating a traffic stop, the officers identified King as the suspect who had driven the vehicle to its present location. In response to one officer's question, King admitted that there was a "needle" inside the vehicle. Following King's arrest, the needle was found under the driver's seat.

(¶ 11} During the traffic stop, the officers noticed that C.K. was asleep in the front passenger seat of the vehicle. The officers further noted that C.K. was not secured in any seat restraints, and that she was not adequately dressed for a cool March day. As a result, one of the officers contacted the county children services board, and an intake investigator was dispatched to the scene.

(¶12} After assessing the situation, the investigator first contacted the county jail to confirm that Gildersleeve was still incarcerated. Based upon the board's records, the investigator contacted Gildersleeve's mother, Sherri Smith, who agreed to come to the gas station and take physical custody of C.K. One day after this incident, the investigator visited Smith at her residence to discuss the situation. As part of their conversation, Smith expressed her concerns about her daughter's continuing drug use and the instability of her daughter's relationship with King. In response, the investigator emphasized that, since a child could be placed with a relative without the intervention of the children services board, no new case would be instituted at that time. In light of this, the investigator informed Smith that, in order for her to obtain legal custody of C.K., it would be necessary for her to file a motion for custody with the juvenile court.

(¶ 13} Over the next few weeks, the investigator continued to have contact with Smith. In at least one of their conversations, the investigator reiterated the need for the submission of a motion for custody of C.K. Although Smith initially indicated that she would file such a motion, she never acted. Moreover, when King and Gildersleeve were released from incarceration, she allowed them to take back physical custody of C.K.

(¶14} In late August 2012, only five months after the "gas station" incident, King and Gildersleeve were living in an Ashtabula County residence which was the subject of a drug raid by local authorities. At the time of the raid, both King and Gildersleeve were placed under arrest, and the children services board was again immediately notified. In its ensuing custody complaint, the board alleged that an active "meth lab" was found in the residence. Based upon the evidence seized in the raid, King was indicted on certain drug charges and child endangering.

(¶ 15} Rather than contacting Sherri Smith concerning physical custody of C.K., the children services board requested, and was granted, an ex parte emergency order of temporary custody. One day later, the board filed a complaint for permanent custody of C.K. and the termination of King's and Gildersleeve's parental rights. In addition to asserting that C.K. was a neglected child due to the parents' bad habits, the complaint also alleged that King and Gildersleeve had previously lost their parental rights as to two siblings of C.K.

(¶ 16} Approximately seven days after the board filed the complaint, Smith submitted a motion for custody of C.K. As the basis for the motion, Smith asserted that Gildersleeve, her daughter, had allowed C.K. to live in a dangerous environment. Smith further stated that granting custody to her would enable C.K. to live with her half-sister, C.B.

(¶ 17} During the pendency of the parental-rights action, C.K. was placed with the foster parents who had previously adopted King's and Gildersleeve's first child, K.B. Within 60 days of the placement, the foster parents told the board that they would be willing to adopt C.K. so that she could reside with her full-sister. During the same 60-day period, King and Glidersleeve were allowed to visit with C.K. one hour each week. Smith never ...

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