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In re N.R.

Court of Appeals of Ohio, Fifth District, Fairfield

June 12, 2017

IN THE MATTER OF: N.R.

         Civil appeal from the Fairfield County Court of Common Pleas, Juvenile Division, Case No. 2015-AB-213

          For FCCPS, ANGELA J. SEIMER, Guardian Ad Litem, SHERRIE HUSTEAD.

          For Defendant-Appellee, JACOB P. ORT, EDWARD ITAYIM.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

          OPINION

          GWIN, J.

         {¶1} Appellant-mother Brianna C. appeals the November 23, 2016 and February 1, 2017 Judgment Entries of the Fairfield County Court of Common Pleas, Juvenile Division, which terminated her parental rights with respect to her minor child, N.R. (b. Nov. 28, 2015) and granted permanent custody of the child to appellee, Fairfield County Child Protective Services (hereinafter "FCCPS")[1].

         Facts and Procedural History

         {¶2} On February 27, 2015, FCCPS filed a complaint alleging that N.C-L[2] and N.C. [3] were dependent children. The initial concerns of FCCPS for Mother at the time N.C-L. and N.C. were removed from the home included concerns over reports that the children were witnessing Mother engage in sexual activity; concerns over reports that N.C-L. had been a victim of sexual abuse by a man Mother was associating with; concerns regarding mental health issues with respect to N.C-L. and Mother's ability to adequately address these issues; concerns that N.C-L's mental health issues were leading to violent and aggressive behaviors; concerns regarding possible drug use by Mother; and concerns over Mother's ability to safely and effectively parent her children.

         {¶3} On December 3, 2015, FCCPS filed a complaint alleging that N.R., a younger sibling of N.C-L. and N.C. was a dependent child.

         {¶4} On May 7, 2015, N.C-L. and N.C. were found to be dependent children and were placed in the temporary custody of FCCPS.

         {¶5} On February 16, 2016, N.R. was found to be a dependent minor and was placed in the temporary custody of FCCPS.

         {¶6} On May 9, 2016, FCCPS filed a Motion requesting permanent custody of N.C-L, N.C. and N.R. On August 9, 2016, Mother filed a letter with the Court that was treated as a Motion for New Counsel, indicating that the mother did not like the manner in which her assigned counsel was handling her case. The Motion was denied by the court. A pretrial on the Motion for Permanent Custody was held on September 21, 2016. The trial on the Motion was held on both October 31 and November 1, 2016.

         {¶7} Prior to the beginning of the trial, Mother's attorney made an oral motion to withdraw as counsel. Counsel referenced Mother's previous request to have new counsel. Counsel indicated that he and Mother did not agree with respect to certain issues. Counsel did indicate that he was prepared to proceed with the hearing. Mother indicated that she was not opposed to counsel's request to withdraw. The court denied the motion on the record. The trial court found that at the time of the request, the Motion for Permanent Custody had been filed for over five months. Additionally, more than two months had passed since Mother's motion for new counsel was denied. The court reasoned that counsel and Mother had many opportunities to bring any new issues to the court's attention, including at a pre-trial conference held September 21, 2016. Instead, the request was made on the day of the hearing prior to the start of trial.

         Permanent Custody trial.

         {¶8} Mother completed a psychological evaluation on August 27, 2015 with Dr. Elizabeth Flum of Integrated Services for Behavioral Health. The report of the evaluation was issued on September 25, 2015 and admitted as State's Exhibit A.

         {¶9} Mother was approximately two hours late for the appointment with Dr. Flum. Mother called near the time the appointment was to begin and indicated that she would be late due to transportation issues.

         {¶10} As the appointment went on, Mother appeared to become impatient with the process, and gave very quick answers to many of the questions. Dr. Flum noted this might have been a result of fatigue do to the lateness of the hour brought on by the transportation issues.

         {¶11} Mother stated during the evaluation that N.C-L. was "kind of traumatized -not right in the head, doesn't want to be around me."

         {¶12} Mother was diagnosed with Generalized Anxiety Disorder, Bipolar Disorder, and Self-defeating Personality Disorder with Negativistic (Passive-Aggressive) Personality Traits and Dependent Personality Traits.

         {¶13} Dr. Flum's treatment recommendations for Mother included targeted psychopharmacologic medications with appropriate consultation; individual counseling focusing on mental health issues; a need to increase Mother's understanding of her thoughts and feelings; short-term group therapy; and parenting education including developing and practicing appropriate discipline techniques.

         {¶14} In particular, Dr. Flum noted Mother's struggles with anger and anger outbursts, and noted that she would be concerned if these issues were not addressed.

         {¶15} With respect to Mother's mental health counseling, Mother worked primarily with Sharon Bankes of New Horizons beginning sometime around September 2015. A treatment plan was developed to address anger, coping skills, conflict resolution, and any other related issues. Originally, the goal was to schedule weekly sessions. Mother did not attend these sessions consistently. From September 2015 to March 2016, approximately eight or nine sessions were scheduled. Mother attended only approximately five or six sessions. Mother canceled three sessions.

         {¶16} Beginning March 2016, the treatment plan included recommended sessions every two weeks. From March 2016 to October 2016, Mother participated in approximately eight individual counseling sessions with Ms. Bankes. Mother cancelled or otherwise failed to attend approximately seven sessions during that time.

         {¶17} On approximately four separate occasions, Ms. Bankes had to discuss with Mother the possibility that she would be terminated from the program due to her attendance issues.

         {¶18} Mother acknowledged that she missed counseling appointments. Mother indicated that she missed these for reasons including transportation issues, conflicts with her work schedule, and conflicts with training to receive her STNA license.

         {¶19} Ms. Bankes testified that Mother's inconsistent attendance made it more difficult to accomplish goals in her counseling, and at the time of the hearing, Mother had not completed the program, and would need additional counselling.

         {¶20} Mother acknowledged that her counseling goals had not been met as of the time of the hearing.

         {¶21} With respect to N.C-L's mental health counseling, N.C-L. worked with Sharon Kuss of New Horizons. Ms. Kuss originally began working with N.C-L. and Mother in 2014. However, after multiple cancellations or lack of appearances at appointments, the appointments were stopped.

         {¶22} In early 2015, Ms. Kuss again began to work with N.C-L Ms. Kuss wanted to address issues relating to N.C-L. being a victim of sexual abuse, problems with anger outbursts and making threats to others, and overall safety concerns.

         {¶23} Ms. Kuss developed a plan in which some sessions would be attended by N.C-L. alone, some by Mother alone, and some by N.C-L. and Mother together.

         {¶24} Individually, N.C-L. has made significant progress in his treatment plan since his placement in foster care, and has demonstrated improvements with respect to his mental health and behaviors. These improvements have been limited by Mother's inconsistency in attending appointments. Ms. Kuss testified that it was important to have Mother present at the sessions so long as the goal was reunification with Mother.

         {¶25} Mother often failed to attend scheduled sessions. On approximately six occasions from October 2015 to October 2016, Mother missed a scheduled session.

         {¶26} On October 14, 2016, Mother attended a session with N.C-L. Prior to that session, Mother had not attended a counseling session with N.C-L. since July 2016 creating a gap of approximately three (3) months.

         {¶27} N.C-L. was aware of the appointments in which Mother was scheduled to attend, and would become angry and agitated when Mother did not attend appointments. Additionally, Ms. Kuss testified that N.C-L's behavior would get worse after his Mother missed scheduled visitation sessions coordinated by FCCPS.

         {¶28} Mother was not asked to attend counseling sessions with N.C. given the inconsistency with respect to with she addressed N.C-L's counseling. N.C. has been witnessed demonstrating sexual positions both with dolls and with her own body. N.C. will likely need to consistently address any ongoing mental health issues she may have.

         {¶29} Mother indicated that she missed these appointments for reasons including transportation issues, conflicts with her work schedule and due to training to receive her STNA license.

         {¶30} When Mother did attend joint sessions with N.C-L, Mother had difficulty demonstrating appropriate communication with him. Ms. Kiss testified that Mother was at times "very harsh" in her interactions with N.C-L. During one specific session, Mother was encouraged to listen carefully to N.C-L. so she could adequately address his concerns. Mother had difficulty listening to him and was unable to adequately assure him that she would make appropriate changes.

         {¶31} FCCPS asked Mother to maintain stable employment and financial stability. Mother was referred to the Bureau of Vocational Rehabilitation, the S.T.A.R.S program, and to Worknet to assist Mother with this goal.

         {¶32} Mother testified that she is looking for employment, but would also like to pursue Social Security Income for various physical issues as well as mental health issues including anxiety and depression. Mother's testimony with respect to her employment since the children were removed included many references to various employers and employment agencies, but Mother did not have a strong grasp of her employment history during this period.

         {¶33} Mother was unemployed at the time of the trial. Her most recent employment was a job she had from sometime in August 2016 until sometime in September 2016. Prior to that time, Mother had a one-month gap in employment from July 2016 until August 2016. Mother worked for approximately one week in July of 2016.

         {¶34} Understandably, Mother did not work for a time before and after the birth of N.R. in November of 2015. However, Mother did not return to work after his birth until approximately April ...


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