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In re K.L.

Court of Appeals of Ohio, Second District, Montgomery

April 7, 2017

IN RE: K.L., C.L., A.L. and K.L.

         Civil Appeal from Common Pleas Court, Juvenile Division T.C. NOS. 2014-3944; 2014-3945; 2014-3946; 2014-3948

          ALICE B. PETERS, Attorney for Plaintiff-Appellee

          ROBERT ALAN BRENNER, Attorney for Defendant-Appellant


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the Notice of Appeal of K.L. ("Father), filed January 17, 2017. Father appeals from the decision of the juvenile court overruling his objections to the Magistrate's decision awarding permanent custody of three of Father's four children to Montgomery County Job and Family Services - Children Services Division ("Agency" or "MCCS"). We hereby affirm the decision of the juvenile court.

         {¶ 2} Neglect and Dependency Complaints were filed on June 11, 2014, regarding K.L.1, born in 1998; C.L., born in 2000; A.L., born in 2004; and K.L.2, born in 2006. The complaints provide as follows:

Agency received a referral regarding [K.L.2, ] seven years old, going to school with what appeared to be a healing bruise between his eyes. The Agency has received several referrals alleging truancy issues with this child's siblings * * * that have led to court involvement. The child gave different accounts for cause of the bruise and then stated that he fell down. MCCS met with the parents, [S.L. ("Mother) and Father] and explained the referral to them. Father started laughing about the referral because he stated that the child gets bruises all the time from playing. [Mother] stated that [K.L.2] was playing last week and he fell and hit his forehead. When Case Worker observed the house there was no furniture in the living room and dining room. There were blankets on the floor and a chest of drawers by the window had piles of clothes on top. Father explained that they were in the process of moving and he had the furniture in storage. Case Worker asked if he had the new address to the house they were moving to, Father stated that it was on [P*******] in east Dayton but he did not have the address. Case Worker asked Parents about their income and Father stated he was in construction and his income varies every month. Mother stated that she had applied for SSI and she had a hearing coming up. Mother stated that she is bipolar and she takes abilify, tegretol, symbalta and another medication she could not recall the name. The family left the last address on [B********] and MCCS did not hear [from] the family for approximately three weeks. The Dayton school truancy officer contacted MCCS and indicated that the parent[s] were staying at [a motel] on [N**** D****]. There are allegations that both parents are doing heroin but Father refused to take a drug test. MCCS helped the family to apply for emergency funds for the deposit for housing and assisted in connecting the family to resources in the area. The family refuted the Agency's help and involvement. The parents were being charged for truancy. The parents were recently sending the children to school for the last couple of weeks of school. The family is currently staying with Father's sister but they had to leave her home by May 30, 2014.

         {¶ 3} On August 5, 2014, after a hearing, the Magistrate granted interim protective custody of the four children to the Agency. The court appointed a Guardian ad Litem ("GAL") for the children, who then issued reports on September 3, 2014. The reports indicate that Mother and Father "have tested positive for opiates and have been referred for a screening through Crisis Care." The reports indicate that the GAL visited the children's home and that it has four bedrooms and two bathrooms, and that only the master bedroom contained a bed. The reports provide that Father advised the GAL that they had recently moved into the home and had to dispose of their other beds due to bed bugs, but that the Agency "will be delivering clothing and beds for the children soon." The reports provide that Mother does not work outside the home and that Father, a mason by trade, has been taking some small construction jobs and plans to return to his union to seek employment. The GAL recommended that interim protective custody of the children continue.

         {¶ 4} On September 11, 2014, after a hearing, a Magistrate's Order of Adjudication was filed for each child. The Order provides that "[a]ll parties stipulate to the facts of the complaint. Based upon the evidence and testimony presented, the Court finds that the children are within the provisions of Title 2151 of the Ohio Revised Code and are dependent and neglected children."

         {¶ 5} On September 26, 2014, the GAL issued reports noting that he had visited the children's home on September 17, 2014. The reports indicate that Mother answered the door and advised that everyone in the home was ill, and that none of the children went to school that day due to illness. The GAL noted that he observed a mattress wrapped in plastic at the bottom of the stairs leading to the bedrooms. The reports indicate that the GAL returned to the home on September 22, 2014, before 8:00 a.m., and there was no answer despite several knocks on the door. The reports indicated that the GAL met with the caseworker, Adrianna Sutton, and learned that both parents submitted samples for drug screenings, and that Mother tested positive for opiates and Father tested positive for oxycodone and opiates. The GAL recommended that the court grant protective supervision to the Agency. Also on September 26, 2014, after a hearing, the juvenile court granted interim temporary custody to the Agency.

         {¶ 6} The GAL issued further reports on November 7, 2014. On December 3, 2014, a "Magistrate's Decision and Judge's Order of Temporary Custody" was filed. It provides in part:

The Court finds that a case plan has been established for the family. At this time, neither parent has remedied the concerns of the case plan. The parents have not complied with drug treatment and have missed their appointments. The agency and Guardian ad Litem continue to have concerns with the overall conditions of the home. Father was recently jailed for about two weeks for a traffic related offense. The parents did testify that they are in agreement with temporary custody to Montgomery County Children Services. On the same date, Seek Work Orders were issued to Mother and Father.

         {¶ 7} On May 18, 2015, the Agency filed a "Motion and Affidavit for a First Extension of Temporary Custody." The affidavit of Adrianna Sutton provides in part that the "parents continue to have ongoing substance abuse issues. The parents have implied to MCCS that they actively using [sic] drugs. Mother was arrested on April 2, 2015 for possession of heroin and cocaine. Charges are still pending in this matter." The affidavit provides that "Father was arrested at the same time as Mother for driving under suspension. He has since been convicted." The affidavit further provides that the Agency has not been able to conduct regular home visits, and that the only time the Agency can contact the parents is at visitation with the children at the Agency. Sutton averred that the parents visit the children regularly every Thursday from 5:00 p.m. until 7:00 p.m., and that there "have been several incidents causing concern during visitation, " including Father striking K.L.2 on the mouth. The affidavit provides that Father "has a tendency to be disruptive in visitation and fails with following the directions of Agency staff. As a result, the agency would like to request that visits remain supervised at this time." The affidavit provides that the children were placed in foster care in September 2014 and are doing well and attending school regularly, with improved performance and grades. The affidavit provides that due to "ongoing substance abuse issues, and until there is further progress and verification on case plan objectives, MCCS believes that a First Extension of Temporary Custody is appropriate."

         {¶ 8} On July 16, 2015, the Magistrate issued an order of continuance on the hearing on the Agency's motion for an extension of temporary custody, noting that "the attorneys have been unable to contact their clients." On September 18, 2015, after a hearing, a "Magistrate's Decision and Judge's Order Granting a First Extension of Temporary Custody" was issued, granting an extension until December 11, 2015. The order provides that the children are doing well in foster care and are placed together, and that they "have expressed that they want to remain in foster care." According to the order, the "mother no longer has housing and has not engaged in substance abuse treatment. She was recently jailed and has felony drug charges pending. The caseworker is unaware of her whereabouts and she has not visited with the children since June of 2015." The order further provides that "father has been jailed since May 2015 in Mercer County and is charged with 29 counts of breaking and entering, theft, and safe cracking. His charges are pending. He is unable to care for the children and wants the children placed with family members. However, no home studies have been approved on any family members at this time."

         {¶ 9} On October 30, 2015, the Agency filed a "Motion and Affidavit for Commitment to the Permanent Custody of MCCS." The affidavit of Adrianna Sutton provides that "Mother stopped visiting the children in June 2015. Father stopped visiting in May 2015, when he was arrested. Father remains jailed in Mercer County awaiting trial. * * * Father calls the children weekly." The affidavit further provides that Mother lacks income and housing and was recently placed in intervention in lieu of conviction after being charged with possession of heroin and cocaine. Sutton averred that "Mother has been in and out of jail three times in the last four months." The affidavit provides that Father also lacks income and housing and continues to struggle with substance abuse. According to Sutton, Father was awaiting trial on several charges "related to breaking into several houses in Mercer County." It provides that the children are doing well in their foster home and attending school regularly.

         {¶ 10} The record reflects that a pretrial hearing was held on November 3, 2015, on the Agency's motion, and a permanent custody hearing was scheduled for January 14, 2016. On January 13, 2016, the GAL filed a report recommending that the Agency receive permanent custody of the children.

         {¶ 11} At the permanent custody hearing, Mother testified that she agrees to the termination of her parental rights, and after ascertaining her understanding of the results thereof, the Magistrate found that her "agreement is knowingly, intelligently and voluntarily given."

         {¶ 12} H.C. (hereafter "H.") testified that she is the children's foster mother, and that they have resided with her since September 27, 2014. She testified that they call her "Momma, " or "Mom." She stated that K.L.2 takes medication for ADHD but that none of the children have special needs. She stated that none of the children have an individual education plan, and that they attend school every day. H. stated that when the children came into her care, K.L.1 was on academic probation for missing school, C.L. was in the seventh grade and reading at a fourth grade level, A.L. was in the third grade and reading at a first grade level, and K.L.2 was not reading at all. She stated that all of the children are reading and that A.L. is on the honor roll with perfect attendance. H. stated that the "only school that's been missed has been for an excused absence. I've had no skipping school, no run away, no juvenile delinquent. They're really good kids." Specifically, H. stated that C.L. was very far behind and has had some testing done because she never learned multiplication. H. stated that testing indicated that C.L. does not have a learning disability but that "it's just something she never learned. She's very bright." H. stated that she works with C.L. on her pre-algebra.

         {¶ 13} H. stated that she is in the process of adopting a three-year old and a four-year old who also live in her home. H. stated that she has enough room and income for all of the children. When asked how Father's four children get along with the younger two children, H. responded, "[t]hey are sisters and brothers. * * * and so they are bonded. The six of them are bonded." H. testified that her grandparents, mother and sister live in town, and that she has adopted brothers and sisters nearby. She stated that the children call her mother "grandma" and her sister "aunt, " and that "they will tell you that it doesn't take blood to be family." She stated that the children are included in family functions and holidays with her family, including a family dinner every Sunday, and that they "have a sense of pride. Something to belong to."

         {¶ 14} H. stated that she loves the children and that they have "been handed a set of cards that they have no clue what to do with * * * They love mom. They love dad. * * * But at the same time, they don't want to go back to the same thing they came from." She stated that the children communicate with their parents on the phone. She stated that Father is allowed to call "from four until seven. I have to put a cut off time, though, because the younger ones have a bedtime and they go to sleep." H. testified that Father "gets aggravated when he gets on the phone with [the children] because of the situation that he's in. So oftentimes, he's told [C.L.] that she's not his. He called [K.L.1] the 'B' word. So [K.L.1] refuses to talk most of the time because he gets mad and hollers at her, so she doesn't want to get on the phone."

         {¶ 15} H. stated that before Father was incarcerated, there were extended periods of time where the children lost contact with him. She stated that he resumed phone contact after he was incarcerated. H. testified that from the time Father was incarcerated he has had no visitation.

         {¶ 16} During the time of supervised visitations at the Agency, H. stated that Mother and Father "showed up. They would just be late." H. stated that she remained in the waiting room for the visitations and that a few times she observed that Mother and Father "were under the influence" when they arrived. She stated that Father often "nodded off, " and that the children "took pictures with him when he was nodding off."

         {¶ 17} H. stated that if the Agency were to obtain custody of the children, she would like to adopt them. She stated that she is not aware of any obstacles to her doing so, and that she has advised the Agency of her intention. She stated that "[everybody works together. We all have our moments; everybody doesn't have a great day. But we're just so used to doing what we do that we don't know anything different at this point. And I think to switch that up on them after they've already been switched so many times wouldn't be positive for them."

          {¶ 18} Adrianna Sutton testified that she has been the children's caseworker for 18 months. She stated that the children have been in the Agency's care continuously since September 26, 2014. Adrianna stated that H.'s home is appropriate, and that she has everything she needs to provide for the children. Adrianna testified that when she visits the home the children "appear to be happy. Every time I go there, * * * they are relaxed and they are having a good time." She stated that the children are bonded to the other two children in the home and to H. Adrianna stated that the children are very anxious about their long term placement, and she stated that they "want permanency. They have stated that to me. They are very happy where they're at. They don't want to leave. So these are all the things they * * * tell me every month when I see them."

         {¶ 19} Adrianna testified that K.L.1, C.L., and K.L.2 have been in counseling since October 2014. She testified that she has "off and on" contact with their counselor, and that "she said they are making progress. They're * * * coming to peace of mind with where the case is at, what the relationship with their parents is going to be in the event that they are adopted by [H.]."

         {¶ 20} Adrianna testified that she went over Father's case plan objectives with him "many times, " and that he fully understood them. She stated that Father "took all the referrals. He told me he was going to follow through and make appointments." Adrianna stated that his objectives were to get a substance abuse assessment and follow the recommendations therefrom, to obtain lawful income and housing and provide verification thereof, and to sign releases of information. She stated that Father was referred to Crisis Care, and that he attended an appointment there in August 2014. She stated that he was referred for intensive outpatient services along with Suboxone treatment. She stated that Father "didn't go to the appointment with the doctor to get on the Suboxone." Adrianna stated that she "didn't have a chance to follow through because prior to his incarceration, he was in and out of jail here in Montgomery County. So I was not in contact with him. I mean, it was difficult for me to find him. I went to the house. I * * * left contact letters. Their phone numbers were not working." Adrianna stated that Father did not engage in a substance abuse program. She stated that since he has been incarcerated, he has not provided her with any information that he participated in a substance abuse program while incarcerated. Adrianna stated that she does not consider the objective regarding treatment for substance abuse completed. She further testified that Father never signed any releases of information.

         {¶ 21} Regarding employment, Adrianna stated that Father has been incarcerated for nine months and has no income. Adrianna stated that Father was transported to the hearing from the Mercer County Jail. She stated that he used to work in construction as an independent contractor, and that prior to his incarceration, he provided some "invoices from jobs he was doing, " but that he did not have a regular paycheck. She stated that his work slowed down in the winter. Adrianna stated that she visited the family's home and that Father told her he was renting it from a friend, but that she never saw a lease. She stated that "there were times that I went * * * to the house and tried to contact them, and it appeared that nobody was staying there." She stated that Father no longer has a residence there, and that his housing and income objectives are not complete.

         {¶ 22} Adrianna stated that Father is facing felony charges, and that she "tried to contact the Prosecutor in the case, and he called me back, but we missed each other, so I was not able to find ...

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