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In re E.W.

Court of Appeals of Ohio, Fourth District, Athens

July 27, 2017


          David J. Winkelmann, Millfield, Ohio, for Appellant.

          Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.


          William H. Harsha, Judge.

         {¶1} The father appeals the trial court's decision granting permanent custody of his child to the Athens County Children Services ("the agency"), initially contending the agency's motion for permanent custody was premature because the agency did not satisfy its duty to make diligent efforts of family reunification. However, the agency sought permanent custody only after making unsuccessful reasonable efforts to reunify the family. Thus, its motion for permanent custody was not premature.

         {¶2} In making a similar assignment of error, the father also argues that the trial court's decision to terminate parental rights and grant permanent custody to the agency was not supported by the requisite evidence. He contends that testimony at the hearing established that reunification could be completed in a reasonable time. However, clear and convincing evidence shows that the parents had substance abuse and mental health issues that caused their child to be removed from custody; and they failed to address those issues despite reasonable and diligent case planning efforts by the agency. Thus, the record supports the trial court's finding that E.W. cannot be placed with either parent within a reasonable time and should not be placed with either parent.

         {¶3} We overrule the father's two assignments of error and affirm the trial court's judgment.


         {¶4} In November 2015, the agency filed a dependency complaint and motion requesting temporary custody of E.W., a three-month-old infant. According to the complaint, the agency became involved after the Nelsonville Police received a 911 call from E.W.'s parents who reported an intruder in their home. The father told police that he saw the intruder, gave the intruder three minutes to leave, and then started to give E.W. a bath. Because the intruder was still there after the father finished E.W.'s bath, he telephoned the police. The mother told police that she saw the intruder crawl into the box springs of the bed and when she "sprayed Febreze" on it, the intruder jumped out. The mother also told police an intruder had broken into their home a week earlier. The police found no intruder or signs of forced entry, but observed that the windows had knives in them to prevent them from opening and that the home was "very messy with trash and debris." (OR #1)

         {¶5} The complaint alleged that E.W.'s parents both have a history of drug abuse and are on probation for crimes related to drug use and possession. The police immediately contacted the agency out of concern for E.W.'s safety because the parents were either under the influence of drugs and/or experiencing serious mental health issues. Caseworkers arrived, observed the parents' erratic and escalating behaviors, obtained an ex parte custody order, and removed E.W. from the home and placed her into foster care.

         {¶6} The case plan indicated that both parents have a history of heroin abuse and unemployment. The case plan required both parents to (1) complete mental health and substance abuse assessments and follow any recommendations, (2) work with Integrated Services to obtain more suitable housing, (3) attend scheduled visits with E.W. and follow visitation rules, and (4) sign necessary releases of information and complete all required medical background forms. The mother needed to submit to drug screens and comply with the rules of her probation. The father needed to continue to work with a drug/alcohol agency for treatment and counseling to help him stay sober and on target in his recovery.

         {¶7} In 2016, after hearings and with the parents' agreement, the court adjudicated E.W. a dependent child and granted the agency temporary custody.

         {¶8} In May 2016, the agency completed a semi-annual administrative review, which found that E.W.'s parents had made minimal case plan progress. Both parents were suspended from mental health care services due to numerous cancellations and "no shows." The mother had failed to obtain a substance abuse assessment or treatment. Both parents had numerous positive drug screens and failed to provide the agency with information concerning potential prescription drugs. The parents had been unable to obtain stable housing and were homeless.

         {¶9} In August 2016, the agency filed an amended case plan to place E.W. in a foster-to-adopt placement because E.W.'s parents had not been visiting on a consistent weekly schedule. Both parents filed objections to the amended case plan, but at a hearing on the objections, the parents withdrew them.

         {¶10} In October 2016, the agency filed a motion for permanent custody. The agency alleged that all attempts at reunification had been unsuccessful because the parents had not successfully addressed their substance abuse and mental health issues. The agency alleged that E.W.'s parents were referred to Integrated Services to address housing issues, but they were evicted from their apartment in early 2016, spent much of the year homeless, and only obtained housing in September 2016. The agency alleged that E.W. cannot and should not be returned to the parents, and it is in E.W.'s best interest to be placed in the agency's permanent custody.

         {¶11} In February 2017, the trial court held a permanent custody hearing. A police officer testified that in March 2016 he had been called to a hospital to speak with E.W.'s mother about an incident that resulted in the father's arrest for domestic violence. A second police officer testified that in July 2016 he was called to an apartment for an alleged drug overdose and when he arrived he saw E.W.'s father passed out on the kitchen floor. The officer was able to wake up the father and had him transported by squad to the local hospital. A third police officer testified that he had been called by E.W.'s father to the parents' apartment in December 2016 because the father believed that there was an intruder in his apartment, but when the officer arrived he found no intruder or evidence of any possible break-in. A fourth police officer testified that several weeks after the December 2016 call, E.W.'s father called to report a suspicious male in front of his home. The officer drove to the home, but saw no one in the vicinity. The officer testified that approximately 45 minutes later the father called again and reported that his home had been broken into and his medication stolen. However, after the police discovered the medication in plastic bags in the father's pockets, the officer charged him with falsification.

         {¶12} The agency's transportation supervisor testified that the parents had been eligible to receive transportation for visitation with E.W. but they repeatedly violated the transportation policies. The supervisor reported that the parents had been removed from the transportation schedule on at least five different occasions during the case, most recently on December 2016 for having at least four missed transports.

         {¶13} Todd Smith, an Adult Parole Authority supervising officer for E.W.'s mother testified that she is a felon currently on probation for drug possession. The parole supervisor testified that the mother is not compliant with her parole reporting, has not reported to him in over a year, has had three arrest warrants, and has not submitted to drug screens as required. The supervisor testified that the mother currently has parole violations pending for which she could receive long-term placement in a correctional-based counseling facility for alcohol and drug treatment, or a prison term.

         {¶14} Jennifer Pinney, a parent-mentor with the agency testified that she had been involved in E.W.'s case as a parent-mentor since November 2016. In December 2016, Pinney attempted to provide mentoring services in a home visit, but both parents appeared to be excited, frantic, moving rapidly and under the influence of drugs. Pinney testified that the parents were upset because they had received drug screen results for the father and he had tested positive for methamphetamine. Pinney expressed concerns to her supervisor about whether parent mentoring was going to be effective because of the parents' ongoing drug use and possible detoxing. The agency suspended parent mentoring from December 6, 2016 through January 19, 2017.

         {¶15} Pinney testified that she went for a home visit in late December 2016 after the father had been arrested for falsification to do a well-check on the mother and found wood debris on the stairwell, music blasting, and the door jamb broken. No one responded to her knocking or verbal inquiries; she felt unsafe and left. Pinney testified that she also observed a number of visits between E.W. and the parents. Pinney testified that the parents were no-shows for four visits and at approximately one-third of the visitations she supervised, the parents arrived and appeared to be under the influence of drugs, have slurred speech, were extremely lethargic, and had drooping eyes. Pinney testified that she has not recommended that the parent-child visitations take place off agency grounds because the parents' behavior over the course of the case has been "very hit or miss, good and bad. Until they have a sustained time of sobriety I don't feel at this point it would be safe to move the visits off ground."

         {¶16} Agency caseworker Melissa Frechette testified that she had been working with E.W.'s parents since December 2015. Frechette testified that the parents lost housing and lived in motels, with friends or family, and in a tent from February 2016 through September 2016. Frechette testified that E.W.'s mother told her that she "gets her medications from the streets", and the mother revoked consent to allow her physicians to report to the agency. Frechette testified that E.W.'s mother did not want to participate in preparing a concurrent case plan, and refused informative brochures and parent-mentoring services because she believed she needed no help with her parenting skills. Frechette stated that she had difficulties tracking all the different doctors the parents had seen and identified at least nine different physicians or nurse practitioners. Frechette testified that both parents were terminated from the mental health assessment and treatment program for no shows or cancellations and that her attempts to meet with them during the case was frustrated by their repeated no shows, homelessness, and her inability to communicate with them by phone. Frechette's attempts to meet with the parents in May through August 2016 were frustrated by the parents' repeated no shows and her inability to locate them. Frachette met with them in June 2016 and went over their drug screens from a May 2016 visitation. She testified that the mother was four months pregnant with a second child at that time. The father's drug screen was positive for amphetamines, marijuana and "benzos." Both parents' drug screens were positive.

         {¶17} Frachette testified that she met with the parents in August 2016 because E.W. had been placed in respite care for the weekend and the agency decided to change the case plan to place E.W. in a foster-to-adopt home that would meet his permanency goals. The agency filed its proposed amended case plan on August 31, 2016 and filed a motion for permanent custody five weeks later in October 2016. Frachette testified that both parents' efforts to follow the case plan improved beginning in September 2016, but neither parent has complied with the requirement to have a medical examination and there have been large gaps of time where they were not receiving drug counseling services. Frachette testified that even though the parents have obtained housing, she would still have concerns about having E.W. returned to the parents because of their drug use, criminal charges, and lack of medical evaluations. Frachette testified that it is in E.W.'s best interest to be placed in permanent custody with the agency because of those issues, as well as the general level of chaos and instability in their lives. Frachette testified that although the parents had shown improvement after the agency filed for permanent custody, their efforts to comply with the case plan have been inconsistent over the history of the case. Frachette testified that the parents' current housing has cockroach infestation, heating/cooling issues, and is not appropriate for E.W.

         {¶18} Ruth Reilly, the guardian ad litem for E.W. testified that she believed it was in E.W's best interest to be placed in the agency's permanent custody because the parents do not have the capabilities to take care of him. Reilly testified that the parents have had over a year to address their issues and they have not taken personal responsibility. The parents never made sufficient progress on their case plans to progress to unsupervised visits. Reilly testified that E.W. is "thriving tremendously" in foster care. Reilly stated that she is concerned about the parents' mental health and their failure to take responsibility for their actions. Reilly testified that the recent efforts the parents have made to comply more fully with the case plan are not enough to convince her that E.W. would be safe in their care, and that giving them more time to make additional efforts would be not be beneficial for E.W.

         {¶19} Several witnesses from Integrated Services testified on behalf of the parents about their efforts to help with transportation and locate housing. Rachell Dishong is a community health case manager for Integrated Services and testified that she has worked with E.W.'s mother since April 2016. Dishong testified that during her interactions with the mother, she did not appear to be under the influence of drugs. Darlene Lustgarten is a housing coordinator for Integrated Services and has been working with E.W.'s parents since October 2016 to locate housing and a HUD housing voucher. Lustgarten testified that she hoped to be able to help E.W.'s parents find more appropriate housing soon. Brandon Buckley is a case manager for Intergrated Services and has been working with E.W.'s father since late September 2016. Buckley testified that he meets with E.W.'s father weekly and the father has made "a big change for the positive, " has been receptive and cooperative, and appears coherent and responds appropriately to questions.

         {¶20} The ...

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