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In re R.M.

Court of Appeals of Ohio, Second District, Montgomery

June 16, 2017


         (Civil Appeal from Common Pleas Court, Juvenile Division T.C. NO. 2013-6460)

          MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, Attorney for Appellee

          JOYCE M. DEITERING, Atty. Reg. No. 0005776, Attorney for Appellant


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the October 28, 2016 Notice of Appeal of I.M. ("Father). Father appeals from the October 21, 2016 "Decision and Judgment Concerning the Objections to the Decision of the Magistrate, " which overruled his objections to the Magistrate's Decision and granted permanent custody of Father's son, R.M., who was born in 2013, to Montgomery County Department of Job and Family Services - Children Services Division ("MCCS"). We hereby affirm the judgment of the trial court.

         {¶ 2} MCCS filed a "Dependency Complaint" and a "Motion and Affidavit for Interim Temporary Custody at an ex parte Proceeding" in the juvenile court on September 16, 2013, alleging that R.M. was born by C-section at 32 weeks gestation, due to his mother, R.B. ("Mother") having severe pre-eclampsia. According to the complaint, R.M. weighed 3 pounds, 5.8 ounces at birth, and he was put on a ventilator with brain and kidney problems. The complaint alleged that Mother did not realize she was pregnant until she was six months into the pregnancy and did not receive prenatal care. The complaint further provides that Father has been abusive to Mother, and that there are concerns "both parents have alcohol abuse issues." The complaint provides that Mother has two older children who live with a relative in Kentucky due to Mother's alcohol abuse. According to the complaint, the family is from Nepal, without family resources, and they do not speak English. The complaint further provides that Mother was discharged from the hospital, and that R.M. remains in the NICU. According to the complaint, a caseworker, with an interpreter, visited Mother and Father in their home, and they had no baby supplies, furniture or a bed for themselves or any source of income, and they reportedly were living on unknown savings. The complaint provides that Mother and Father struggle with connecting with resources due to their language barrier and lack of support.

         {¶ 3} According to the complaint, R.M. had two bilateral brain hemorrhages and was on oxygen for a time, and he had a feeding tube while hospitalized. The complaint provides that Mother and Father have visited R.M. in the hospital "sporadically, " with several days between visits. It further provides that the hospital is preparing to discharge R.M. The complaint provides that the agency has concerns about the parents' ability to meet R.M.'s special needs, and it notes that at a meeting with hospital staff on September 12, 2013, both parents threatened to harm or kill themselves if they are not permitted to take R.M. home with them. Finally, the complaint provides that Mother may be married to a man who remains in Nepal, and that Father is also married to someone else who lives in Nepal. The court issued an "Order of Temporary Custody ex Parte" on the same date the complaint was filed.

         {¶ 4} After a shelter care hearing on September 20, 2013, a "Magistrate's Order of Interim Custody" was issued 10 days later. It provides that Mother and Father have substance abuse issues and do not have appropriate supplies in their home for R.M. It provides that MCCS has concerns that R.M.'s medical issues may be the result of Mother's consumption of alcohol during her pregnancy. The order provides that interim temporary custody to MCCS is in R.M.'s best interest.

         {¶ 5} A hearing on the complaint was scheduled for November 15, 2013, and on that date, the "Report of the Guardian Ad Litem" ("GAL") was filed. It provides that the G.A.L. recommends that the juvenile court grant temporary custody to MCCS. On December 5, 2013, the "Magistrate's Decision and Judge's Order of Disposition of Temporary Custody" was filed. The Magistrate determined the allegations in the complaint to be true and declared R.M. a dependent child.

         {¶ 6} On August 3, 2014, MCCS filed a "Motion and Affidavit for a First Extension of Temporary Custody to MCCS." The affidavit of Shelly Aggarwal provides that Mother and Father are making progress on their case plan objectives, and that they are both employed at a restaurant full time, each making $800.00 per month. According to the affidavit, both parents completed the Council for Alcohol and Drug Abuse Services therapy for substance abuse, both parents deny current use of alcohol, and both completed parenting classes. Aggarwal averred that Mother and Father were living rent free in an apartment provided by their employer, and they still need to obtain independent housing. The affidavit provides that MCCS was providing assistance in locating housing and utilities. According to Aggarwal, both parents visit with R.M. at MCCS on Wednesdays from 1:00 - 4:00 p.m., unless they are unable to leave work. Aggarwal averred that Mother and Father make every effort to attend the visits, and that they are "very loving and nurturing" to R.M., bringing age appropriate snacks and toys to share with him. The affidavit provides that both parents are attentive to R.M. and spend most of the visits playing and talking with him.

         {¶ 7} On October 22, 2014, the "Magistrate's Decision and Judge's Order Granting a First Extension of Temporary Custody" was filed. It provides that Mother and Father made progress on their case plan objectives "but they still need to obtain and maintain independent, safe and appropriate hous[ing] that is not provide[d] by their employer." The Magistrate found that a first extension of temporary custody to MCCS is in R.M.'s best interest.

         {¶ 8} On January 30, 2015, and February 3, 2015, MCCS sought a second extension of temporary custody. The supporting affidavit of Shelly Aggarwal provides that in December 2014, "the parents called MCCS and stated that they had moved to Virginia to live with a relative and look for work. The parents did state that they intended to return to the Dayton area in two months. MCCS has attempted to make contact with the family via phone however the phone number was disconnected." The affidavit provides that the family "still needs to obtain independent housing and a source of income." On February 13, 2015, Aggarwal filed Affidavits for Service by Posting, averring that Mother's and Father's whereabouts were unknown.

         {¶ 9} On April 15, 2015 a "Magistrate's Decision and Judge's Order Granting a Second Extension of Temporary Custody" was filed. It provides that Mother and Father have left the State of Ohio, their whereabouts are unknown, and that based on the credible testimony presented in court, a second extension of temporary custody is in R.M.'s best interest.

         {¶ 10} A "Motion and Affidavit for Commitment to the Permanent Custody of MCCS" was filed on July 22, 2015. Aggarwal's affidavit provides at the end of December 2014, "the parents stopped coming to visitation when they moved out of state." Aggarwal averred that Mother and Father are "reporting that they have obtained housing and benefits through Human Services in Rochester[, ] New York. In addition [Father] has obtained part-time employment. Since December 2014, MCCS made several attempts to get in touch with the parents. MCCS did not have a working phone number for the parents." According to the affidavit, when "MCCS did speak to the parents in January 2015, the parents were asked to make monthly contact with MCCS but the parents did not. In July 2015, MCCS was again able to make contact with the parents by phone. With the assistance of an interpreter, MCCS did arrange a meeting with the parents that would take place on the phone." Aggarwal averred that when "the phone conversation took place the parents did tell MCCS that they had housing, benefits, income, and were not * * * drinking alcohol. The [p]arents did e-mail MCCS proof of housing, income, and benefits." According to Aggarwal, in July 2015, MCCS "made the request that New York complete an interstate home study to determine if the parents' home was appropriate for the child. The child continues to do well in care. The child attends speech therapy weekly at Dayton Children's and receives HMG/PACE service bi-weekly to help with his socialization. The child is not school age." The affidavit provides that no "relatives are able, willing and appropriate to care for the child." The affidavit further provides, "[b]ecause the parents are unfit/unable to care for the child, it is in the best interest of the child for the Court to commit the child to the permanent custody of MCCS."

         {¶ 11} On September 22, 2015, a "Motion to Transfer Foster Care" was filed by counsel for Father. It provides in part that Father "hereby moves this Court for an Order transferring the child's foster care provider to someone residing in or near Rochester, New York, because both parents do not have the financial resources to travel to Dayton, Ohio for visits with the child and cannot obtain employment in or near Dayton, Ohio." The motion provides that "[b]oth parents now reside by economic necessity in New York where they have suitable housing and employment." An "Amended Motion and Affidavit for Commitment to the Permanent Custody of MCCS" was filed on September 24, 2015. A "Notice of Hearing" for November 9, 2015 was issued on September 29, 2015.

         {¶ 12} At the start of the hearing on November 9, 2015, counsel for Father indicated that his "Motion to Transfer Foster Care" was pending, and that he sent a copy of the motion and the notice of hearing to Father via ordinary mail, and that the mail was not returned as undeliverable. He stated, "My client has not appeared this morning, at least as of now 10:00 a.m. an hour past the Notice date and time. The question initially is whether it's ethical for me to proceed on the Motion at all by perhaps calling the caseworker on cross or whether it is inappropriate for me to do anything." The Magistrate responded, "I guess, I would want to hear some testimony from the caseworker."

         {¶ 13} Counsel for Father called Aggarwal as if on cross examination. She stated that she has been involved with R.M. and his parents since September of 2013. When asked how compliant the parents were with their visitation schedule with R.M., Aggarwal stated that, "[i]n general, they would come to visitation. However, they would leave their work to come to visits. And they worked at an Indian restaurant at the time. So, if their employer said, hey, we're going to be really busy today or there's going to be a large party [sic]. Then they would not come to the visitation." She stated that "there were times where there would be weeks would pass and they wouldn't come to visitation. But they would tell us because it was their employer would not allow them to leave work [sic]. But when there was not an issue with work according to the parents, then they would come to visitation."

         {¶ 14} Aggarwal stated that "around December 2014 they had been coming regularly, weekly" to visit R.M., and then they stopped coming, and she stated that "we assumed that it was because they were busy at work." She stated that "several maybe a couple maybe two to four weeks had passed and they hadn't come, " and the Father then "called me and said that he was in Georgia[1]. They had gone to Georgia and that they would be back in two months to get [R.M.]." She stated that she received the call from Father in January 2015, and "then when I attempted to call him in February that number was no longer valid and I didn't have a way of contacting them."

         {¶ 15} When asked if she subsequently learned that Mother and Father had relocated to Rochester, New York, Aggarwal responded as follows:

A. Prior to them moving to Rochester I had received a call from, she said she was a family friend and then she said she was an aunt. So she identified herself as an aunt. But said she was a family friend [sic]. She said the family was living in New Jersey. So, she had given me her contact information to make contact with the family. So, when I had called back because I had to get an interpreter to do the conversation, I was unable to actually reach the parents. So, the next month approximately, I would say around April of 2015 I received an email from a gentleman named Bhawani Bhujel from Rochester Rehabilitation. And he said that he was their case manager and he was working with them to obtain benefits and services in the community.

         {¶ 16} Aggarwal stated that she asked Bhujel for a Release of Information from both parents, and that he "said okay." She stated that she did not hear from him again in April or May. Aggarwal testified that "that was around the time that the Agency needed to do their filing. So, I made a last attempt to make another contact with him * * * around June of 2015" to obtain the Releases of Information. She stated that she received the Releases near the end of June 2015, and she "set up a phone conference with an interpreter along with the parents for the first week of July of 2015." On that phone conference, Aggarwal stated that Mother and Father told her they were living in Rochester, that Mother was pregnant and due in July or August 2015, that Father was working part-time, and that they "had received benefits in regards to housing. They were receiving housing through Rochester. Food stamps and some cash assistance." Aggarwal stated that she confirmed this with documentation from their case manager who "emailed me those documents."

         {¶ 17} Aggarwal testified that during the phone call she reminded Mother and Father that they had not seen R.M. "since December and that it was important for them to see their child. I told them we would be willing to work around their schedule. If they needed assistance with bus [sic], the Agency would assist with that. We also talked about even phone calls or Face Time, and they said they would do it." According to Aggarwal, "they said they needed time to get it set up, needed time to get it arranged. And I did not hear anything after that in regards to visits." Aggarwal stated that when she spoke to Father in July, he told her that he could not come visit because of Mother's pregnancy and approaching due date. She stated that every month she contacted Bhujel, "but I didn't hear anything back from him either until I saw the parents at the last court date." (The record reflects that Mother and Father attended an Annual Review/Permanency Planning hearing held on August 17, 2015).

         {¶ 18} The following exchange occurred:

Q. Do you recall having a telephone discussion with me about the possibility of transferring foster care to a family living in or near Rochester, New York, where these financially limited parents reside?
A. Yes.
Q. And is it the policy of your employer that we don't transfer foster care to another city and state that you'll need to file a motion to pursue that issue? [sic]
A. After speaking to my supervisor and manager I was instructed that it would be [in] the best interest of the child to keep him in the foster home that he's been in for the past two years and receiving services. So, at that time I was instructed by the Agency would not be in agreement to transferring the child to New York. [sic]
Q. Is there a network or system that enables your employer to communicate with its counterparts and other cities and states to identify * * * the availability of foster families in those other locations to substitute for a local foster family?
A. We have the ability to contact other county children services and make contact with them, yes.
Q. In this case it was a policy decision that we're not going to do that, correct?
A. Correct.
Q. Would you agree these parents in this case have limited financial resources to travel?
A. When I saw them last, he was working. He had an income. They * * * were receiving over $600.00 in food stamps. Their housing was being paid for it was approximately [$]575.[00]. So, he did have in my opinion, he had the income to come to see the child. He had told me he was off on the weekends from work. So that time I had explained to him that the Agency can assist him in bus fare to come and see the child.
Q. When the parents lived here, they did reasonably exercise their ...

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