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In re L.W.

Court of Appeals of Ohio, Twelfth District, Warren

November 6, 2017

IN THE MATTER OF: L.W., et al.

         APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 15-D000046, 15-D000047, 15-D000048, 15-D000049.

          Kim Bui, for appellant.

          David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, for appellee, Warren County Children Services.

          Matthew N. Miller, for appellee, CASA.


          S. POWELL, J.

         {¶ 1} Mother appeals a decision of the Warren County Court of Common Pleas, Juvenile Division, granting permanent custody of L.W. 1, L.W.2, L.W.3, and L.W.4 (referred to collectively as the "children") to appellee, Warren County Children Services ("WCCS").[1]

         {¶ 2} On May 26, 2015, WCCS filed a complaint alleging neglect and dependency. The complaint alleged a referral informed WCCS that Mother was using heroin, the home did not contain sufficient food for the children because Mother sold her food stamps to support her drug use, and Mother locked the children in bedrooms throughout the day. Thereafter, WCCS made contact with Mother, confirmed the lack of food in the home, and that Mother had a balance of $3 on her food stamp card. Additionally, Mother agreed to a drug test and tested positive for heroin and morphine. Mother adm itted to using such drugs with her "live-in boyfriend, " as well as the occasional use of other prescription medication without a prescription.

         {¶ 3} On the same date as the filing of the complaint, the juvenile court conducted an emergency shelter care hearing and placed the children in the temporary custody of WCCS. On August 6, 2015, the juvenile court held an adjudicatory hearing and found the children dependent and neglected. On August 18, 2015, the juvenile court held a dispositional hearing and ordered that the children remain in the temporary custody of WCCS. The juvenile court appointed a representative for the Court Appointed Special Advocate ("CASA"). Neither Mother nor Father appeared for the hearings. WCCS developed a case plan with the goal of reunification of the children with the parents. The original case plan included completing drug and alcohol and mental health assessments and following any recommendations therefrom, abstaining from using illegal drugs and submitting random drug screens, signing any requested releases, obtaining stable housing and employment, avoiding unnecessary encounters with law enforcement, attending visits, and remaining compliant with WCCS.

         {¶ 4} On May 16, 2016, WCCS moved for a six-month extension of temporary custody. On October 27 and November 22, 2016, WCCS and Mother filed motions requesting an additional six-month extension, respectively. On December 21, 2016, the CASA representative objected to the extension motions and moved for a grant of permanent custody of the children to WCCS. On January 24, 2017, WCCS joined the CASA representative's motion for permanent custody. The juvenile court heard testimony for the motion on April 3, 2017. The testimony revealed the following facts.

         {¶ 5} WCCS and Mother had prior interaction before the commencement of the present case, as a juvenile court granted WCCS protective supervision of the children in December 2011. Shortly thereafter, the juvenile court placed the children in the temporary custody of WCCS due to Mother's illegal drug use, physical abuse of the children, and domestic violence incidents between Mother and Father. Mother successfully worked through her case plan and the juvenile court returned custody of the children to Mother with WCCS continuing to have protective supervision. The case closed in January 2013.

         {¶ 6} WCCS assigned the first caseworker to Mother's present case from May 2015 to January 2016. The first caseworker testified regarding initial ongoing concerns with Mother's extensive illegal drug use, the presence of her live-in boyfriend around the children, a lack of food at the home, and reports Mother locked the children in bedrooms throughout the day. Originally, WCCS placed the children together in the same foster home. However, due to behavioral issues their individual placements changed multiple times. WCCS moved L.W.2 and L.W.3 to a new foster home due to sexualized behavior towards L.W.1. The sexualized behavior, including digital penetration between L.W.2 and L.W.3, continued in their new placement; therefore, WCCS returned L.W.3 to his original placement with L.W. 1 and L.W.4.

         {¶ 7} The caseworker testified regarding additional concerns with Mother's live-in boyfriend. These concerns included his extensive criminal history as well as L.W.1 informing the caseworker the boyfriend made her lie in bed naked with him on multiple occasions in addition to allegations of physical abuse. WCCS moved L.W.1, L.W.3, and L.W.4 to a second foster home because concerns regarding the original foster parents' fitness for placement arose. The children's behavioral issues continued throughout the pendency of the case, but have largely subsided over time while placed with their respective foster families. The children have participated in counseling and have begun to advance in school after starting behind other students academically at the beginning of this case.

         {¶ 8} WCCS later amended the original case plan to remove Father because his whereabouts became unknown. With respect to Mother and the case plan, she did not begin working towards meeting the plan's objectives until November 2015. Mother attended a detox program, transitioned to drug and alcohol intensive outpatient care, but failed to complete the aftercare phase of the program. Despite efforts by WCCS, Mother did not have any contact with WCCS from May to November 2015. During this initial meeting with Mother in November 2015, Mother tested negative in her drug screen, but indicated to the caseworker that she used heroin a couple days earlier. Upon resurfacing, Mother expressed willingness to attempt to meet the objectives of her case plan. The caseworker and Mother discussed the allegations regarding Mother's live-in boyfriend and that he would have to participate in the case plan for reunification. Mother expressed disbelief with respect to the allegations of abuse and a concern the live-in boyfriend would not cooperate with WCCS. The first caseworker opined that Mother did not substantially remedy the conditions, which caused the children's removal.

         {¶ 9} The second caseworker took over Mother's case in February 2016. The second caseworker testified the children are progressing in their respective foster homes and have bonded with their foster parents. The second caseworker corroborated the first caseworker's testimony regarding Mother's participation in a detox program as well as drug and alcohol intensive outpatient care. In March 2016, Mother transitioned to the aftercare phase of the program where she was receiving Vivitrol shots to help prevent relapse with heroin. In September 2016, the second caseworker completed an unannounced home visit where Mother submitted a drug screen positive for amphetamines and methamphetamines. Upon further discussion, Mother revealed that she used methamphetamine once with her live-in boyfriend and his friends. Due to the positive drug screen, the second caseworker recommended Mother complete a new drug and alcohol assessment. Mother did not complete this assessment until late November 2016.

         {¶ 10} In addition to Mother's relapse, the second caseworker discussed Mother's inconsistent attendance for individual and group therapy sessions and her failure to show up for a few of her monthly Vivitrol shots. This inconsistent attendance prompted Mother's counselor to send Mother a letter in February 2016 informing her of possible dismissal from the program if her attendance did not improve. The second caseworker expressed concern that Mother had failed to complete her drug and alcohol objective in her case plan by the time of the permanent custody hearing. With respect to her other case plan objectives, Mother completed parenting classes and obtained stable housing and employment. However, the housing only had three bedrooms; therefore, concerns remained regarding the children sharing rooms, as they had to be separated from one another throughout the case. Further, Mother's live-in boyfriend remained a significant concern.

         {¶ 11} The second caseworker indicated to Mother her concerns regarding the children's allegations of abuse by the live-in boyfriend. Mother indicated to the second caseworker that she did not believe the allegations and that she does not believe it is a concern. In October 2016, the second caseworker's supervisor sent Mother a letter inform ing her that WCCS could not recommend reunification if the live-in boyfriend remained in contact with Mother. Despite indicating to the caseworker on multiple occasions that she would end her relationship with the live-in boyfriend, Mother did not end the relationship until two weeks before the permanent custody hearing. The second caseworker testified regarding her doubts the relationship has ended with finality. In the months between receiving the letter and ending the relationship, Mother and the live-in boyfriend were seen together on multiple occasions, including showing up to visitation together. Mother's therapist testified that Mother's disbelief regarding the allegations of abuse by her live-in boyfriend indicates to her that Mother needed additional treatment to address the relationship as an ongoing concern.

         {¶ 12} Both caseworkers indicated that Mother inconsistently attended visitation. The juvenile court placed the children in the temporary custody of WCCS in May 2015. Mother attended one visit in June 2015. Thereafter, Mother did not have any contact or communication with the children until February 2016. Mother explained she had been depressed and using heroin during this time. Mother reengaged with visitation upon entering treatment, which lasted until the visitation was ultimately suspended. The caseworkers described the visits as chaotic and noted Mother's inability to engage with all four children at the same time.

         {¶ 13} On April 11, 2017, the juvenile court granted permanent custody of the children to ...

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