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In re N.H.

Court of Appeals of Ohio, Fifth District, Fairfield

May 19, 2017

IN RE: N.H. - N.H. 2 ET AL.,

         Appeal from the Fairfield County Court of Common Pleas, Juvenile Division, Case Nos. 2015-AB-189 and 2015-AB-190

          For Plaintiff-Appellee R. KYLE WITT Prosecuting Attorney By: DAVID K. H. SILWANI Assistant Prosecuting Attorney.

          For Defendant-Appellant S.H. JULIA TABOR Law Offices of Jason M. Donnell, LLC.

          For Guardian Ad Litem EDWARD ITAYIM.

          For Mother AJMERI HOQUE YMF Inc.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.


          BALDWIN, J.

         {¶1} Appellant S.H. appeals from the January 10, 2017 Judgment Entry of the Fairfield County Court of Common Pleas, Juvenile Division, granting permanent custody of his two children to Fairfield County Child Protective Services.


         {¶2} N.H. (DOB 7/9/15) and N.H. (DOB 7/9/15), who are twins, are the biological children of appellant S.H. On July 22, 2015, Fairfield County Child Protective Services (FCCPS) filed complaints alleging that N.H. and N.H. were dependent children. On the same day, the two children were placed in the temporary shelter custody of FCCPS. The complaints were later dismissed without prejudice.

         {¶3} On October 13, 2015, FCCPS filed complaints alleging that both children were dependent children. Following a shelter hearing held the same day, the two children were placed in the temporary custody of FCCPS. On November 19, 2015. N.H. and N.H. were found to be dependent children and were placed in the temporary custody of FCCPS.

         {¶4} Thereafter, on June 13, 2016, FCCPS filed motions in both cases seeking permanent custody of the children. An oral hearing on the motion commenced before a Magistrate on October 10, 2016. While the children's mother did not contest the motion, appellant did.

         {¶5} At the hearing, Dr. Mary Elizabeth Flum, an outpatient therapist with a PH.D. in counseling education, testified that she had a chance to assess appellant in January of 2016 and that appellant almost fell asleep during her evaluation. She testified that appellant discussed his use of marijuana which had developed into a daily habit and also that appellant stated that, in approximately 2010, he had started using opiates and had overdosed eight times. Dr. Flum testified that appellant stated that he had been diagnosed with bipolar disorder. Dr. Flum, following a psychological examination, diagnosed appellant with bipolar I disorder, a personality disorder that caused appellant to have disruptions in his relationships with others and issues with impulse control, and chemical dependency based on his opioid use. She also diagnosed him with borderline intellectual functioning. Dr. Flum testified that she recommended that appellant continue his psychiatric consultation and continue with substance abuse treatment. Dr. Flum testified that she wanted appellant to have his medications monitored so that his mood swings and concerns with anxiety and depression would be controlled. Appellant also was recommended by her to complete cognitive behavioral therapy and parenting education. The following is an excerpt from her testimony at the hearing:

         {¶6} Q: From a hypothetical standpoint, let's just say that [S.H.] has not engaged in any of those recommendations, would that cause you concern about his ability to parent?

         {¶7} A: Again, it would be hard for me to say having not observed him around his children. But generally, broadly speaking, if you're suffering from significant behavioral health, mental health behaviors, and you're not addressing those issues, then it could be setting you up for difficulties in your relationship with others.

         {¶8} Q: Okay, Including children?

         {¶9} A: Yes, it could be.

         {¶10} Transcript at 188.

         {¶11} Dr. Flum's evaluation of appellant was admitted as an exhibit.

         {¶12} Stefanie Valdez, a caseworker with Franklin County Children's Services who had previously worked with Fairfield County Job and Family Services, testified that she was assigned the case of N.H. and N.H. on August 14, 2015, a month after the two were born, and remained the caseworker until May 27, 2016. She testified that the agency became involved after the children's mother posted on Facebook while the children were in the hospital that she did not have items for the babies and the two parents were behaving erratically. She also indicated that the agency had concerns that the parents were substance abusers and were unable to meet the special needs of the twins, who were premature. When asked about the case plan for appellant, she testified that he was to complete an alcohol/drug assessment through the Recovery Center and follow through with recommendations, engage in mental health counseling and follow recommendations, complete a psychological evaluation and follow recommendations, and complete parenting education. Valdez testified that housing was not a concern and that appellant received a monthly disability check. According to Valdez, when the agency first received the case, appellant already had a Subutex prescription. She testified that appellant was to maintain his prescriptions and show them to the agency when requested to do so. Valdez testified that appellant was assessed by the Recovery Center and started services there. While Valdez was his caseworker, appellant was working on his alcohol/drug treatment. Valdez testified that appellant tested positive for marijuana in September of 2015.

         {¶13} Joanne Butcher, the caseworker who took over for Valdez in June of 2016, testified that since she had taken over, appellant had made little progress on his case plan with respect to drug and alcohol recovery issues. When she first started, appellant was connected with the Recovery Center but wasn't going. Butcher testified that appellant did see a counselor at MidOhio. According to Butcher, appellant had completed the first packet at MidOhio that is used for alcohol and drug education, but that there were several packets. When asked if, with respect to counseling for drug and alcohol issues, appellant had successfully completed that portion of his case plan, she testified that he had not. Appellant had not shown proof of any prescriptions since August of 2016 although he was required to do so and had switched from Subutex to Suboxone without telling her. Butcher further testified that appellant had not complied with the recommendations from his psychological examination and was not doing anything, as far as she was aware, for his bipolar disorder.

         {¶14} While appellant was seeing someone from MidOhio and had been doing better since July of 2016, Butcher testified that appellant had not made substantial progress on his case plan with respect to mental health counseling. She further testified that appellant was not receptive to parenting education and that appellant had not complied with that aspect of his case plan.

         {¶15} Butcher testified that the agency had looked into other family members for purposes of placement, but that none were suitable or interested. She testified that she had monitored several visits between appellant and the twins and that during the visits, appellant bickered with the children's mother and seemed aggravated when one of the babies was fussy. According to her, there was "not a lot of loving, tenderness, that kind of stuff in their visits." Transcript at 551. She also had an opportunity to observe the twins in their foster home. The following testimony was adduced when she was asked if there was any difference in how the twins behaved in their foster home than with appellant:

         {¶16} A: There's a difference. Foster mom is very laid back. They have lots of things for the girls to do. They have sectioned off a large area of their room. They have lots of books. And like appropriate kind of little toys that they've been given examples of what would help with their physical development. So they can move around easily. And the girls are very affectionate. She will sit on the floor ...

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