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In re H.M.K.

Court of Appeals of Ohio, Third District

September 30, 2013

IN THE MATTER OF: H.M.K., ADJUDICATED DEPENDENT CHILD. [DIANE K. - APPELLANT]. IN THE MATTER OF: J.B.K., ADJUDICATED DEPENDENT CHILD. [DIANE K. - APPELLANT].

Appeals from Wyandot County Common Pleas Court Juvenile Division Trial Court Nos. C 2102010 and C 2102011

Charles R. Hall, Jr. for Appellant.

Douglas D. Rowland for Appellee, Wyandot Co. DJFS.

OPINION

PRESTON, P.J.

(¶1} Mother-appellant, Diane K., appeals the trial court's judgment entry awarding permanent custody of H.M.K. to the Wyandot County Department of Job and Family Services ("WCDJFS") and the trial court's judgment entry awarding legal custody of J.B.K.[1] to his paternal uncle and aunt, Chris and Tara H. For the reasons that follow, we affirm the judgments of the trial court.

(¶2} On August 27, 2010, WCDJFS filed complaints alleging that H.M.K. was a dependent child as defined in R.C. 2151.04(C), and that J.B.K. was a dependent and neglected child as defined in R.C. 2151.04(C) and 2151.03(A)(2). (Doc. Nos. 1, 1). The complaints were based on substantiated allegations of Diane's failure to supervise her children. (Id.); (Id.). H.M.K.'s case was assigned trial court case no. C 2102010, and J.B.K.'s case was assigned trial court case no. C 2102011. (Id.).[2]

(¶3} Prior to filing the complaints in this case, WCDJFS had previous involvement with Diane involving her older children, one of which was allegedly sexually abused by Diane's male "friend" who was living in the home. (Id.). Similarly, this case involved substantiated allegations that Diane's live-in boyfriend physically and sexually abused H.M.K. (Id.). With respect to J.B.K., WCDJFS alleged that Diane failed to properly care for J.B.K. when he was a toddler and allowed J.B.K. to escape from her home. (Id.).

(¶4} On September 7, 2010, Diane appeared and was appointed counsel; thereafter, the trial court entered conditional denials to the charges in the complaints regarding H.M.K. and J.B.K. on Diane's behalf (Doc. Nos. 22, 26). At that time, the State indicated that it was just notified of the identity of children's fathers and would ascertain their addresses and attempt service. (Id.).

(¶5} On September 13, 2010, Marvin H., J.B.K.'s father, appeared and was appointed counsel; thereafter, the trial court entered conditional denials to the charges in the complaint regarding J.B.K. on Marvin's behalf (Doc. No. 29). The State notified the trial court that it had attempted to serve H.M.K.'s father, Michael B., without success, and it believed that he was avoiding service, so the State would pursue service by publication. (Doc. No. 30).

(¶6} On September 14, 2010, WCDJFS filed a motion requesting that the trial court continue its adjudication hearing so that H.M.K.'s father, Michael B., could be served by publication. (Doc. No. 23).

(¶7} On September 20, 2010, the trial court adjudicated H.M.K. a dependent child as to Diane upon her admission. (Doc. No. 33). On this same day, the trial court also adjudicated J.B.K. a dependent child upon Diane's admission, and the State dismissed Count Two charging Diane with neglect. (Doc. No. 32). The trial court granted WCDJFS protective supervision of the children for the development of a case plan with the goal of reunification. (Case No. C 2102010, Doc. No. 33); (Case No. C 2102011, Doc. No. 32).

(¶8} On October 18, 2010, the trial court adjudicated H.M.K. a dependent child as to Michael B., who did not appear for the proceedings after receiving notice, according to Diane. (Doc. No. 35). That same day, the trial court adjudicated J.B.K. a dependent child as to Marvin H. upon his admission. (Doc. No. 34).

(¶9} On November 8, 2010, the trial court held a dispositional hearing and, thereafter, took the matter under advisement for post-hearing written arguments, because the Guardian Ad Litem ("GAL") requested that the trial court grant WCDJFS temporary custody while WCDJFS requested only protective supervision. Counsel for Diane advocated for a middle-of-the-road approach whereby the children would remain in their mother's care with strict orders from WCDJFS concerning their supervisory capacity. (Case No. C 2102011, Doc. Nos. 35-37); (Case No. C 2102010, Doc. Nos. 36-38).

(¶10} On December 14, 2010, the trial court issued its judgment, ordering that WCDJFS be awarded protective supervision. (Case No. C 2102011, Doc. No. 38); (Case No. C 2102010, Doc. No. 39). The trial court also ordered, in pertinent part, that Diane keep the children away from violent or sexual offenders; H.M.K. be removed from all but one social networking website; and, H.M.K. "friend" a WCDJFS' employee on Facebook so that H.M.K.'s communications could be monitored. (Id.); (Id.).

(¶11} On February 9, 2011, WCDJFS filed a motion to show cause why Diane should not be held in contempt of court for failing to abide by the court's orders. (Case No. C 2102010, Doc. No. 43); (Case No. C 2102011, Doc. No. 44). In particular, WCDJFS alleged that Diane: allowed adult men, who were friends of her adult daughter, to stay in the residence with the minor children; failed to fill out an application for day care through WCDJFS; refused to take a budgeting class even though she continued to have financial difficulties; failed to follow-up with school officials regarding H.M.K.'s academic performance; failed to enroll H.M.K. in extracurricular activities in school; failed to ensure that H.M.K. accepted an agency employee's "friend" request on Facebook; failed to enroll J.B.K. in Head Start; and, failed to attend counseling at Firelands. (Id.); (Id.).

(¶12} On February 28, 2011, the trial court held a hearing on the motion, Diane admitted she was in contempt of the trial court's orders, and the trial court sentenced Diane to 30 days in jail but suspended the sentence for Diane to purge the contempt. (Case No. C 2102010, Doc. No. 48); (Case No. C 2102011, Doc. No. 49).

(¶13} On March 11, 2011, Marvin H. filed a motion to establish parenting time with J.B.K. (Doc. No. 52). On March 16, 2011, Marvin H. filed an amended motion for parenting time, alleging that the trial court's order that J.B.K. have no contact with anyone convicted of a sexual offense effectively denied him of any parenting time because he was convicted of a sexual offense in 2000. (Doc. No. 53). Marvin alleged that he inappropriately touched his then-girlfriend's four-year-old daughter while she was bathing. (Id.). However, Marvin alleged that he was rehabilitated after serving two years in prison, attending one and a half years of sexual-offender treatment, and receiving five years of post-release counseling through an independent agency. (Id.).

(¶14} On April 5, 2011, WCDJFS responded to the motion, arguing that the department does not have custody of J.B.K., rather protective supervision, and Marvin's custody dispute should be addressed in the pending paternity case, Wyandot County Juvenile Court I.E. case I 2103040. (Doc. No. 56).

(¶15} On April 15, 2011, the trial court dismissed Marvin's amended motion to establish parental visitation rights, finding that Marvin should have addressed visitation in the paternity case. (Doc. No. 57).

(¶16} On April 29, 2011, WCDJFS filed a motion for emergency custody of the children, alleging that Diane allowed the children to visit Marvin H., a registered sex offender. (Case No. C 2102010, Doc. No. 51); (Case No. C 2102011, Doc. No. 58). The trial court held a hearing on the motion that same day. Thereafter, on May 9, 2011, the trial court issued an entry concluding that WCDFS' emergency removal was proper, continuing WCDJFS' temporary custody of the children, and scheduling a full hearing. (Case No. C 2102010, Doc. No. 56); (Case No. C 2102011, Doc. No. 62).

(¶17} On June 29, 2011, WCDJFS filed a supplemental motion for emergency custody of H.M.K., alleging that, while in the foster home, J.B.K., who was five years of age, was humping H.M.K.; H.M.K., who was ten years of age, possessed pornography on her Nintendo DIS; and, H.M.K. had a disturbing fascination with the condom isle at the grocery store. (Case No. C 2102010, Doc. No. 61). On that same day, WCDJFS filed a motion for an order placing J.B.K. in the temporary custody of his paternal uncle and aunt, Chris and Tara H. (Case No. C 2102011, Doc. No. 69).

(¶18} On July 5, 2011, the trial court filed an entry noting that it would be inappropriate to grant Chris and Tara H. temporary custody of J.B.K. since there is a pending hearing concerning temporary custody as between Diane and WCDJFS, and J.B.K. is currently developing a relationship with his foster parents. (Case No. C 2102011, Doc. No. 73). Consequently, the trial court set the motion for hearing on the same date as the hearing scheduled to rule on WCDJFS' motion for temporary custody. (Id.).

(¶19} On September 9, 2011, Marvin H. filed a motion for custody of J.B.K. (Case No. C 2102011, Doc. No. 79).

(¶20} On September 22, 2011, WCDJFS filed a motion for Diane to have unsupervised visitation with the children. (Case No. C 2102010, Doc. No. 71); (Case No. C 2102011, Doc. No. 84). That same day the Court Appointed Special Advocate ("CASA"), through the GAL, filed an objection to WCDJFS' motion for unsupervised visitation. (Case No. C 2102010, Doc. No. 72); (Case No. C 2102011, Doc. No. 85). Also that same day, Marvin H. filed another motion seeking visitation with J.B.K. (Doc. No. 86).

(¶21} On October 18, 2011, the trial court held a hearing on the various motions. On October 24, 2011, Marvin H., with the parties consent, filed an exhibit consisting of his sexual-offender treatment records, assessments, and progress reports in support of his motion for visitation. (Doc. No. 89).

(¶22} On January 13, 2012, the trial court filed an entry granting Marvin H. visitation with J.B.K. under WCDJFS' supervision. (Doc. No. 91). The trial court also granted Diane's motion for unsupervised visitation with H.M.K. for two to three hours at a time, as scheduled with WCDJFS; however, the trial court denied Diane's motion for unsupervised visitation with J.B.K. at this time since Diane had failed to properly supervise him. (Case No. C 2102010, Doc. No. 77); (Case No. C 2102011, Doc. No. 91). The trial court ordered that the children remain in WCDJFS' temporary custody. (Id.); (Id.).

(¶23} On March 8, 2012, WCDJFS filed a motion for an order placing J.B.K. in the temporary custody of his paternal uncle and aunt, Chris and Tara H. (Doc. No. 96). WCDJFS represented that the foster mother was no longer a placement option, and that J.B.K. has bonded with his uncle and aunt throughout the case. (Id.). On March 14, 2012, Marvin H. filed an objection to the motion. (Doc. No. 98). On March 20, 2012, the trial court continued WCDJFS' temporary custody of J.B.K.; however, it allowed J.B.K. to be placed into Chris and Tara H.'s home on the condition that they pass a home study since no other foster homes were available. (Doc. No. 99).

(¶24} On May 2, 2012, WCDJFS filed a motion requesting that Diane's unsupervised visitation time with H.M.K. be increased to six hour increments, which motion was granted. (Doc. Nos. 85-86). On this same date, WCDJFS filed a motion requesting that Diane be granted unsupervised visitation with J.B.K., and that J.B.K. be placed in the temporary, relative custody of Chris and Tara H. (Case No. C 2102011, Doc. No. 103).

(¶25} On May 24, 2012, the trial court granted Diane unsupervised visitation with J.B.K.; however, the trial court ordered WCDJFS to conduct unannounced visits and immediately report any concerns to the court. (Doc. No. 104). The trial court also granted Chris and Tara H. temporary, relative custody of J.B.K. (Id.).

(¶26} On June 13, 2012, however, WCDJFS' filed a motion requesting that Diane's visitation time with the children be returned to supervised visitation since Diane failed to properly supervise them during her unsupervised visitation time. (Case No. C 2102010, Doc. No. 88); (Case No. C 2102011, Doc. No. 106). The trial court granted the motion the same day. (Case No. C 2102010, Doc. No. 89); (Case No. C 2102011, Doc. No. 107).

(¶27} On July 27, 2012, WCDJFS filed a motion seeking permanent custody of H.M.K. (Doc. No. 91). That same day, WCDJFS filed a motion asking the court to grant Chris and Tara H. legal custody of J.B.K. (Doc. No. 108).

(¶28} On October 24, 2012, the trial court held a hearing on the motion for permanent custody of H.M.K. and motion for legal custody of J.B.K. (Case No. C 2102010, Doc. No. 97); (Case No. C 2102011, Doc. No. 109).

(¶29} On November 7, 2012, the trial court granted Chris and Tara H. legal custody of J.B.K., awarded Diane reasonable supervised visitation as agreed between the parties, and terminated WCDJFS' protective supervision. (Doc. No. 118). The trial court also ordered Diane to provide the Wyandot County Child Support Enforcement Agency ("CSEA") with income information for child support calculation purposes, and CSEA was ordered to provide copies of the calculation to the parties for a seven-day written objection period. (Id.). The trial court did not grant Marvin H. visitation time with J.B.K.; however, Marvin H. indicated at the hearing that, if Chris and Tara H. were to receive placement, "he was done." (Id.). On November 13, 2012, the trial court filed a nunc pro tunc entry removing personal identifiers from its previous entry. (Doc. No. 120).

(¶30} On November 27, 2012, CSEA filed notice of the child support calculation with the trial court and the parties, indicating that Diane's child support for J.B.K. should be $314.30 per month, plus a $6.29 per month processing fee, when health insurance is provided. (Doc. No. 121).

(¶31} On November 28, 2012, the trial court granted WCDJFS permanent custody of H.M.K., terminating the parental rights of Diane and Michael B. (Case No. C 2102010, Doc. No. 97).

(¶32} On December 10, 2012, Diane filed a notice of appeal from the trial court's judgment entry awarding WCDJFS permanent custody of H.M.K., which was assigned appellate case no. 16-12-15. (Doc. No. 101). That same day she filed a written objection and request for a hearing regarding the child support calculation for J.B.K. (Doc. No. 123). The trial court ordered that Diane pay ...


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