Court of Appeals of Ohio, Fifth District, Fairfield
IN RE: N.H. - N.H. 2 ET AL.,
from the Fairfield County Court of Common Pleas, Juvenile
Division, Case Nos. 2015-AB-189 and 2015-AB-190
Plaintiff-Appellee R. KYLE WITT Prosecuting Attorney By:
DAVID K. H. SILWANI Assistant Prosecuting Attorney.
Defendant-Appellant S.H. JULIA TABOR Law Offices of Jason M.
Guardian Ad Litem EDWARD ITAYIM.
Mother AJMERI HOQUE YMF Inc.
JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon.
Craig R. Baldwin, J.
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.
OF THE FACTS AND CASE
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.
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.
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.
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
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?
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.
Q: Okay, Including children?
A: Yes, it could be.
Transcript at 188.
Dr. Flum's evaluation of appellant was admitted as an
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
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
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.
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:
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 ...