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In re K.M.

Court of Appeals of Ohio, Fourth District, Pickaway

March 30, 2017

IN THE MATTER OF: K.M., K.H., JR., AND J.H., Adjudicated Dependent Children.

         CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION

          Lori Pritchard Hardin, Circleville, Ohio, for Appellant.

          Kendra Kinney-Liebherr, Circleville, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Peter B. Abele, Judge.

         {¶ 1} This is a consolidated appeal from three Pickaway County Common Pleas Court, Juvenile Division, judgments that granted Pickaway County Job and Family Services Board (PCJFS), appellee herein, permanent custody of seven-year-old K.M., six-year-old J.H., and two-year-old K.H., Jr. A.H., the children's biological mother and appellant herein, [1] raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:
"THE LOWER COURT'S DECISION GRANTING PERMANENT CUSTODY TO THE PICKAWAY COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS, THEREFORE, RENDERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
SECOND ASSIGNMENT OF ERROR:
"APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FACT THAT COUNSEL FAILED TO CROSS-EXAMINE ALL OF THE AGENCY'S WITNESSES, AND COUNSEL FAILED TO PRESENT ANY EVIDENCE, OTHER THAN THE TESTIMONY OF APPELLANT, IN HER CASE IN CHIEF."

         I BACKGROUND

         {¶ 2} On August 21, 2014, appellant and K.H.[2] requested appellee's assistance. They reported that they recently lost their home and did not have a place to stay with the children. Appellee informed the parents that Haven House[3] could house appellant and the children. Haven House would not, however, be able to house K.H. Because appellant did not wish for her and the children to be separated from K.H., the parents rejected the Haven House option. Appellee next found another shelter that could house the family and transported the family to the shelter. Upon arrival, the parents learned that the shelter required males and females to sleep in separate locations. After learning about this rule, they chose not to stay at the shelter, and instead called friends to pick them up and drive them to Circleville. The next day, the parents again sought appellee's assistance. Appellee once more recommended Haven House, but the parents again declined. Appellee then agreed to take the children into foster care under a voluntary thirty-day agreement.

         {¶ 3} On September 19, 2014, appellee filed complaints that alleged the three children to be dependent children and requested temporary custody or protective supervision. The complaint alleged that appellant and K.H. agreed to place the children in appellee's care for thirty days while they secured housing, but as the thirty-day agreement was about to expire, the parents had yet to secure a location to house the children. The trial court then placed the children in appellee's temporary custody.

         {¶ 4} On November 17, 2014, the trial court adjudicated the children dependent. By that point, the parents had obtained employment and appellee had found an apartment for the family. The court thus placed the children with the parents, subject to protective supervision. Appellee developed a case plan for the parents that identified the following goals: (1) obtain and maintain safe, stable housing; (2) obtain and maintain employment; and (3) successfully complete budgeting classes.

         {¶ 5} In December 2014, the parents informed their caseworker that they were short on funds to pay their rent, had lost their jobs, were being evicted, and would have nowhere to stay. Their caseworker additionally learned that K.M. had not enrolled in school and that after she had enrolled (with the caseworker's assistance), the school reported that K.M. arrived to school dressed in shorts and a t-shirt, even though it was snowing outside. When the caseworker questioned K.H. about K.M.'s inappropriate attire, K.H. explained that he had not seen K.M. when she left for school in the morning. Appellant, apparently, was no longer staying at the family's apartment, and thus, was unaware of K.M.'s school attire.

         {¶ 6} Due to what appellee perceived to be deteriorating conditions, it sought the children's removal and placement with relatives. Shortly thereafter, the parents separated. Appellant moved in with friends, and K.H. moved to Perry County to live with his girlfriend and her five children.

         {¶ 7} On January 12, 2015, the trial court entered an emergency custody order and placed each child with a relative. All of the children subsequently were removed, at different times, from their relative placements and placed in appellee's temporary custody: (1) on April 17, 2015, the trial court removed K.H., Jr. from his relative's care; (2) on July 23, 2015, the trial court removed J.H. from his relative's care; and (3) on February 18, 2016, the trial court removed K.M. from her relative's care. Upon their removal from the relative placements, the children were placed in a foster home. K.H., Jr. was placed in a home without either sibling, while J.H. and K.M. were placed in the same foster home.

         A PERMANENT CUSTODY PROCEEDINGS

         {¶ 8} On June 10, 2016, appellee filed a motion that requested permanent custody of K.H., Jr. and alleged that the child had been in its temporary custody for twelve or more months of a consecutive twenty-two month period and that permanent custody is in the child's best interest.

         {¶ 9} On July 28, 2016, appellee filed motions that requested permanent custody of K.M. and J.H. Appellee alleged that K.M. cannot be returned to either parent within a reason time, that J.H. has been in its temporary custody for twelve or more months of a consecutive twenty-two month period, and that permanent custody is in the children's best interests.

         1 Permanent Custody Hearing

         {¶ 10} On September 7, 2016, the trial court held a hearing to consider appellee's permanent custody motions. Neither K.M.'s father nor K.H. (J.H. and K.H., Jr.'s father) appeared.

         {¶ 11} Caseworker Dave Groff testified and explained the course of events after the children's January 2015 removal from the parents' custody. Shortly after the children's removal, appellant and K.H. separated. Appellant "kind of jump[ed] around with friends, " and K.H. moved in with his girlfriend, B.T., who lived in Perry County with her five children. Perry County Children Services had been involved with B.T.'s children, and B.T.'s house had numerous problems: (1) the roof was falling apart; (2) the home had a lot of water damage; (3) the home did not have running water; (4) animal feces was located throughout the home; and (5) the home lacked overall cleanliness. At the time of the permanent custody hearing, some of those concerns had been alleviated. The roof had been repaired and the house had running water, but the house did not have heat and still lacked overall cleanliness.

         {¶ 12} Caseworker Groff stated that despite appellee's assistance with referrals, funding, and transportation over the course of nearly two years, neither parent completed the case plan requirements. Appellant (1) did not obtain stable housing or employment, (2) left the state in September 2015 and did not return until December 2015, and (3) did not follow through with Integrated Services. K.H. (1) did not obtain employment, but instead, lives off the child support his girlfriend receives for her five children, and (2) has not made much progress with his mental health counseling.

         {¶ 13} Groff also explained that the parents demonstrated "constant problems" with their weekly visitation. He stated that the parents did not always arrive on time or did not show up at all, and that they sometimes would miss two or three weeks in a row. Additionally, when appellant left the state, she did not visit with the children for three months.

         {¶ 14} Groff testified that the parents' lack of consistency negatively affected the children, J.H. most visibly. Groff indicated that when the parents failed to attend visits, J.H. would "throw major fits, " had "meltdowns" with "[s]creaming, crying, [and] throwing things, " and was "[v]ery hard to console." Groff stated J.H. even gave the "driver issues on the way home * * * not wanting to listen, getting out of his seatbelt, hitting windows on the van, throwing things." Groff testified that when the parents failed to attend visits, K.M. would become upset and sometimes cried.

         {¶ 15} Groff explained that when the parents did attend visitations, they ordinarily appropriately interacted with the children. He related that K.H. could be "hands off" and spent "a lot of time in the bathroom or it seemed like he was always ill." The caseworker indicated that returning the children to the parents was not possible as of the date of the permanent custody hearing. He stated that over the course of nearly two years, neither parent has remedied the concerns that caused the children's removal, and he does not believe that "enough progress has been made to allow [him] to believe that here in the next six months[, ] maybe even longer[, ] that this could be resolved."

         {¶ 16} Caseworker Groff explained that each child is thriving in foster care. K.H., Jr. was placed with his foster family in April 2015, when he was just over one year old. Groff stated that K.H., Jr. is "very bonded with the foster parents" and that the foster parents are meeting all of his needs.

         {¶ 17} Groff testified that in July 2015, J.H. entered his foster home and is doing "really well." Groff explained that J.H. appears happy, reports that he feels safe, and feels "very bonded" to his foster parents. Groff stated that J.H. refers to his foster parents as "mom" and "dad."

         {¶ 18} Groff related that in February 2016, K.M. entered the same foster home as J.H. He indicated that K.M. has experienced "the biggest change" since entering the foster home. Groff stated that the foster mother, who is a teacher, worked with K.M. during the summer to improve her reading skills to grade-level. Groff also explained that K.M. has reached a healthier weight and appears happier. He testified that K.M. indicated that she would like to stay with the foster family.

         {¶ 19} Groff stated that appellee did explore relative placements, but the homes either were unsuitable or unavailable to house additional residents. He opined that placing the children in appellee's permanent custody is in their best interests.

         {¶ 20} J.H. and K.M.'s foster mother testified that J.H. has lived in her home for fourteen months and that K.M. has lived in the home for seven months. She stated that she feels very bonded to the children and hopes to adopt them.

         {¶ 21} K.H., Jr.'s foster mother explained that K.H., Jr. has lived in her home for seventeen months. She feels bonded to the child and would like to make him "a permanent fixture in the home." She further stated: "He's already a part of the family. And we would be lost without him." The foster mother related that she has custody of her grandchild, who tells everyone K.H., Jr. is his brother.

         {¶ 22} The children's guardian ad litem indicated that all of the children are thriving in foster care and are bonded to the foster families. K.M. reports that she is "very happy where she's at and hopes that's where she gets to stay." The guardian ad litem testified that K.M. has "totally changed" for the better in foster care. She further related that J.H. appears "very happy" and "loves where he's at and hopes he stays." The guardian ad litem stated that K.H., Jr. is "a happy baby." She related her belief that placing the children in appellee's permanent custody is in their best interests.

         {¶ 23} The guardian ad litem also testified that, although appellant interacted appropriately with the children during her visits, K.H. did not interact much at all. She indicated that the children "seem pretty happy [during their visits] unless one of the parents doesn't show up."

         {¶ 24} Appellant testified and explained that for the last month and one-half, she has been living with a friend, and that for the past three months, she has been employed at Burger King. She thinks that if the court allowed her additional time, she would be able to obtain housing and take care of her children.

         2 Decisions

         {¶ 25} On October 13, 2016, the trial court entered memorandum decisions determining that placing the children in appellee's permanent custody is in their best interests, that K.M. cannot or should not be placed with either parent, and that J.H. and K.H., Jr. have been in appellee's temporary custody for more than twelve out of the past twenty-two months.

         K.M.

         {¶ 26} In determining that K.M. cannot or should not be placed with either parent, the trial court found that K.M.'s father (J.W.) abandoned her. The court also found that appellant made little, if any, progress during the past two years and that she did not demonstrate the commitment to obtain and maintain safe, stable housing and to provide food, clothing and medical care for K.M. Specifically, the court found that (1) appellant does not have sufficient income to obtain independent housing, (2) she has not completed or attempted to complete basic budgeting programs that would train and equip her to provide for her family, and (3) she was discharged from Integrated Services due to a lack of contact and communication.

         {¶ 27} The trial court evaluated K.M.'s best interest and found that K.M.'s foster mother established a good relationship with K.M, helped improve her academic performance, and helped K.M. follow a healthy diet. The court considered K.M.'s wishes and observed that the guardian ad litem stated that K.M. indicated a desire to stay in the foster home with her brother. The court additionally reviewed K.M.'s custodial history and found that (1) she lived with appellant and K.H. until she was five-and-one-half-years old, (2) between September 2014 and November 2014, she was in appellee's temporary custody, (3) she lived with appellant and K.H. from November 2014 through January 2015, and (4) she was placed with K.H.'s mother from January 2016 until February 2016. The court further determined that K.M. needs a legally secure permanent placement that cannot be achieved without granting appellee permanent custody.

         J.H.

         {¶ 28} In its memorandum decision concerning J.H., the trial court observed that K.H. did not appear at the permanent custody hearing and did not offer any evidence. The court found that J.H. has been in appellee's temporary custody for more than twelve out of the past twenty-two months.

         {¶ 29} The trial court evaluated J.H.'s best interest and found that he lived with his parents for approximately one-half of his life and with his aunt for a few months. The court noted that J.H. enjoys his relationship with the foster parents and refers to them as "mom" and "dad." The court found that J.H. lacked the maturity to express his wishes.

         {¶ 30} The trial court additionally determined that J.H. needs a legally secure permanent placement that he cannot achieve without granting appellee permanent custody. The court found that neither parent has made progress over the course of two years and explained that neither parent

demonstrated or committed to the agency the dedication necessary to obtain and maintain safe, stable housing and otherwise financial security for providing food, clothing and medical care. The parents let down J.H. when they failed to appear for their scheduled visits. He has the hardest time of any of the children dealing with these cancelled visits.

         The court continued:

[T]he current foster placement provides J.H. with an opportunity to thrive, be nurtured and raised in a secure protective environment. He is residing with his sister. The foster mother indicates an intention to adopt J.H. and his sister, K.M., if the opportunity presents itself to them. Due to the parents' failure to commit them to eliminating the conditions that led to the removal of the child from their custody, the court believes that J.H.'s need ...

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