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In re I.W.

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

IN RE: I.W., A.W., JR. and S.W.

         Appeal from Common Pleas Court-Juvenile Division Trial Court Case Nos. 2013-2559/2013-2560/2014-5075.

          MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Attorney for Appellee-Montgomery County Children Services

          JENNIFER S. GETTY, Atty. Attorney for Appellant-T.W.

          NICOLE RUTTER-HIRTH, Attorney for Appellant-A.W.

          SHIREEN HEBERT, Atty. Reg. No. 0077594, Guardian Ad Litem


          WELBAUM, J.

         {¶ 1} This matter is before us on the appeal of T.W. and A.W., Sr., who are the biological parents of three minor children, I.W., A.W., Jr., and S.W.[1] Mother and Father appeal from a judgment terminating their parental rights and awarding permanent custody of the children to the Montgomery County Children's Services ("MCCS").

         {¶ 2} Mother contends the decision that the children could not be placed with either parent within a reasonable time was against the manifest weight of the evidence. In addition, Mother contends that the decision to award permanent custody to MCCS, in the best interest of the children, was against the weight of the evidence.

         {¶ 3} Father filed a separate brief, and raises essentially the same two assignments of error. He also argues, in a third assignment of error, that the court erred in granting permanent custody to MCCS because reasonable efforts would have prevented continued removal.

         {¶ 4} We conclude that the trial court did not err in awarding permanent custody of Appellants' three minor children to MCCS. The court's decision that the children could not be placed with either parent within a reasonable time or should not be placed with either parent was supported by competent, credible evidence. In addition, the court's decision that a permanent custody award to MCCS was in the children's best interest was supported by competent, credible evidence. Finally, the court properly concluded that MCCS made reasonable efforts to prevent the continued removal of the children and to reunify the family. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 5} In February 2013, MCCS received a referral regarding I.W., who was born in late January 2013. Although no toxicology screen was done on Mother or I.W., the child began showing physical signs of withdrawal shortly after birth. When questioned, Mother admitted taking prescription drugs not as prescribed. I.W. was placed in the Neonatal Intensive Care Unit ("NICU") for the withdrawal, and was sent home with the parents after three weeks.

         {¶ 6} At the time, the parents were living in a homeless shelter with their two-year old son, A.W., Jr. The hospital gave them instructions to follow up with a primary care physician, but they failed to take I.W. to four scheduled appointments. On several occasions in March 2013, the parents returned to Dayton Children's Medical Center ("CMC") with I.W., but failed to follow up with a primary care physician as directed. Finally, on March 22, 2013, they returned to CMC with the child, where he was admitted with a diagnosis of Flu, RSV, Failure to Thrive, Oral Thrush, Pyelonephritis, Bacteremia, and a gastrointestinal condition.

         {¶ 7} While I.W. was in the hospital, the parents and A.W., Jr., moved into the Ronald McDonald House, which was across the street from CMC. Mother was encouraged to room in with I.W., but she failed to do so until April 9, 2013. The parents also failed to follow instructions on how to feed I.W., and CMC would not release the child to them. As a result, MCCS filed a complaint with the juvenile court on April 11, 2013, and asked for interim temporary custody of I.W. at an ex parte hearing. The order was granted the same day, and the court set further hearings.

         {¶ 8} On April 11, 2013, MCCS also filed a neglect and dependency complaint concerning A.W., Jr., who had been born in November 2010, based on developmental concerns about the child. The parents claimed A.W., Jr., was autistic, but he had never been tested. However, A.W., Jr. had out-of-control behaviors, and the CMC staff observed that Mother could not control him. In addition, the family had previously been linked to the "Help Me Grow" program, but did not cooperate and had been discharged. The trial court granted MCCS interim protective supervision over A.W., Jr., and set the matter for further hearing. Counsel was appointed for each parent, and a guardian ad litem ("GAL"), Shireen Hebert, was appointed for the children.

         {¶ 9} In July 2013, the GAL filed a report, recommending that temporary custody of I.W. continue and that Mother be ordered to call and schedule a full physical/well-child check for A.W., Jr. as soon as possible. The GAL noted concern over Mother's lack of follow-through with both children and with meeting her own mental health needs. The GAL also described I.W. as a fragile child. At the time of the GAL's visit, the parents were living in an apartment in which they had been placed by St. Vincent De Paul's Homefull program, which was to pay the first three month's rent.

         {¶ 10} At an adjudicatory hearing held on July 9, 2013, the court found I.W. and A.W., Jr. neglected and dependent. Among other things, the court concluded that Mother had significant substance abuse issues that had not been addressed.

         {¶ 11} In August 2013, the GAL filed a supplemental report in connection with a dispositional hearing scheduled for August 28, 2013. Among other things, the GAL noted that Mother had missed or cancelled 15 of 36 visits with I.W., had made inconsistent statements about her own drug use and A.W., Jr.'s developmental services, and had refused to sign a consent form to have I.W. circumcised, which doctors recommended to minimize kidney infections.

         {¶ 12} On September 5, 2013, the court filed an order extending MCCS's temporary custody over I.W., and protective supervision of A.W., Jr., until April 11, 2014. Subsequently, on October 21, 2013, MCCS filed a motion and affidavit for interim temporary custody of A.W., Jr. According to the affidavit, A.W., Jr. was three years old and could not speak. However, Mother and Father had failed to complete paperwork and take A.W., Jr. to be assessed at CMC's developmental clinic. Mother had also failed to comply with essential services that had been arranged for A.W., Jr. with the PACE program for Early Intervention Services, and with Help Me Grow. Mother had also inaccurately reported to MCCS that she had followed through on all services.

         {¶ 13} Interim temporary custody of A.W., Jr. was granted to MCCS on October 25, 2013, and further hearings were scheduled. On December 12, 2013, the GAL filed a report, indicating that the parents had been evicted from their apartment for nonpayment of rent and were now living at the home of Mother's grandmother. The GAL again noted inaccuracies and inconsistency in information the parents gave to providers and caseworkers. In addition, the GAL was concerned about Mother's mental health and/or pain pill addiction.

         {¶ 14} After a hearing, the court filed an order on January 2, 2014, granting MCCS temporary custody of A.W., Jr. until October 21, 2014. In February 2014, MCCS filed for a first extension of custody for I.W., stating that the parents had not made significant progress on their case plan objectives. Among other things, Mother had not signed a release for her mental health provider, the parents had not provided needed documentation of housing and employment, had not consistently visited the children, and had failed to engage with medical providers as required by the case plan. After a hearing, the court granted the first extension for I.W. on March 21, 2014.

         {¶ 15} In July 2014, Mother gave birth to a third child, S.W., who was in the NICU for over a week due to drug withdrawal symptoms. On July 28, 2014, MCCS filed a dependency complaint and motion with the court, asking for interim temporary custody of S.W. According to the affidavit filed with the complaint, Mother was in treatment at Clearing Paths for mental health and drug dependency, and was taking Subutex for her addiction to Xanax. At the time Mother was admitted to the hospital, she had additionally tested positive for Benzodiazepine. The court issued the order the same day, and set further hearings. Hebert was also appointed the GAL for S.W.

         {¶ 16} Subsequently, in late August 2014, MCCS filed motions for permanent custody of I.W., and A.W., Jr. The GAL filed a report in September 2014, highlighting issues with Mother's addiction and truthfulness on various subjects, including her reasons for cancelling visitation with S.W. At that time, the GAL did not make a permanent custody recommendation, but asked for additional time, since counsel had just been appointed for the parents. A hearing on the permanent custody motions was set for November 12, 2014.

         {¶ 17} In November 2014, the GAL filed a supplemental report recommending extensions of the agency's temporary custody of I.W. and A.W., Jr., due to "strong concerns about Mother's truthfulness and her willingness and ability to be the primary care provider as Father works long hours during the day." See, e.g., J.C. Case No. 2013-2560, Doc. #72, p. 5. The GAL also noted that Mother had a 12-year history of addiction to Xanax and other prescription drugs, and had only begun to engage herself in program requirements in the past few months. Id. In addition, the GAL was concerned about the children's safety while in Mother's care and about Father's unwillingness to appreciate the extent of risk to the young children if they were left in Mother's care during the day.

         {¶ 18} MCCS did move for extensions of temporary custody of I.W. and A.W., Jr. and the court granted those on December 1, 2014. In late March 2015, MCCS filed motions asking that the court grant legal custody of I.W., A.W., Jr., and S.W., to both parents, or in the alternative to Father. The affidavit accompanying the motions indicated that the custody extensions were set to expire in late July 2015, and that the parents had made substantial progress on their case plan objectives. Among other things, MCCS indicated that Mother had been transitioned out of the Suboxone program and was no longer taking Suboxone, that the parents were going to be working with Agape Reunification Services, that Father was employed, that parents had maintained their housing for a significant period of time, and that Father had attended most of the medical appointments for I.W., but could not attend all due to his work schedule. Trial on the motions was set for June 23, 2015.

         {¶ 19} However, shortly thereafter, on April 15, 2015, the GAL filed motions for permanent custody of I.W. and A.W., Jr., and for a first extension of temporary custody of S.W. The motion was supported by the affidavit of the GAL, who stated that a return of custody to the parents would not be in the children's best interests. In this vein, the GAL made many observations regarding the parents' failure to adequately attend and participate in I.W.'s needed medical appointments; their two-year delay in approving a medical procedure for I.W., which increased his risk of infection and hospitalization; the parents' failure to attend any medical appointments for the other two children; the uncleanliness of the parents' home, even though Mother was not working; Mother's admission that she was not bonded with I.W. and A.W., Jr. and that she could not "handle it" when S.W. cried; Mother's admission that while she had been transitioned out of the Suboxone program, she had continued to take prescription medication that was not currently prescribed, including Klonopin and Zofran; the GAL's belief that Mother had not met the case plan objectives concerning mental health and drug abuse; Mother's history of untruthfulness, which would put her children at risk; Father's inability to protect the children because of his inability to discern the truth or parenting deficits of Mother; the fact that Father had a seizure disorder but continued to drive without addressing his medical needs, thereby placing the children at risk if they were returned; and issues about the parents' housing.

         {¶ 20} On April 3, 2015, or shortly before the GAL's motion was filed, the MCCS caseworker met with Mother and brought S.W. for a home visit because they were working on a possible transitional plan. Mother mentioned that she had just seen her doctor at Clearing Paths and he had prescribed Celexa. Mother never mentioned rejoining a Suboxone program.

         {¶ 21} After a hearing on April 7, 2015, the court ordered the parents to submit to a drug screen. Mother tested positive for buprenorphine, which is the medical term for Suboxone or Subutex. On May 29, 2015, the MCCS caseworker asked Mother about the drug screen. At that point, the caseworker had received the test results. Mother was adamant that her drug screen would be clean, and stated that if anything showed up, it would be Klonopin, which had been prescribed. Mother denied numerous times that Suboxone would be present, and verified that she had been discharged from the Suboxone program in January 2015. However, when Mother was shown the positive drug screen, she admitted she had rejoined the Suboxone program. Mother then stated she had rejoined the program after the April court date and that the test result must have been wrong. This could not have been correct, however, because the drug screen would have taken place before Mother admitted to having rejoined the program.

         {¶ 22} The caseworker then called Clearing Paths and put the agency on speakerphone. A caseworker from Agape was also on the line. At that time, MCCS discovered that Mother had been returned to the Suboxone program in March 2015. MCCS also learned that Mother had been discharged from the program for noncompliance earlier in May, i.e., prior to the May 29, 2015 discussion with the caseworker and the phone call to Clearing Paths.

         {¶ 23} On June 11, 2015, MCCS filed amended motions for permanent custody of I.W. and A.W., Jr. MCCS also filed an amended motion for first extension of temporary custody of S.W. on June 15, 2015, and then filed a second amended motion and affidavit for permanent custody of S.W. on August 13, 2015. These motions were based on grounds similar to those raised by the GAL's motion.

         {¶ 24} On June 17, 2015, the GAL filed a report, recommending that the court grant permanent custody of I.W. and A.W., Jr. to MCCS, and a first extension of temporary custody of S.W. to MCCS. The court set a hearing on the motions for September 16, 2015, and the GAL filed a supplemental report on September 10, 2015. At the time, A.W., Jr. had been diagnosed with adjustment disorder and was undergoing therapy because of anxiety before and after visitation. A.W., Jr. expressed concern that his foster mother would leave him and he would not sleep alone after visitation. He also now wet the bed, after previously having been potty-trained. Likewise, I.W. had difficulty sleeping after visits.

         {¶ 25} In addition, the GAL noted that the parents were not present for the specialist and pediatric appointments for I.W. in August. The GAL noted some positive interaction in a visit among mother and the children. However, Mother had been permanently discharged from the Suboxone program and was no longer engaged at Clearing Paths for services. Father was also out of the home working from 7:00 a.m. to 7:00 p.m. Despite the fact that Father was employed, the GAL concluded that Mother had made no progress and was essentially in the same place she had been two years ago. The GAL recommended that permanent custody of all the children be granted to MCCS.

         {¶ 26} At the hearing on September 16, 2015, the court heard testimony from the following individuals: a CMC nurse; Mother's therapist at Clearing Paths; I.W.'s foster parents; and two reunification workers from Agape. The nurse testified about discussions he had with Mother on January 13, 2015, the day before I.W.'s scheduled surgery. Mother represented during the conversation that MCCS was watching I.W. for a little while because she was sick when she had the baby, and then the agency had to watch I.W. because Mother went to law school. None of this was true.

         {¶ 27} The Clearing Paths therapist came in contact with Mother in 2013. She indicated that Mother began the Suboxone program in 2014 and was required to attend group counseling sessions twice a week and to meet with a therapist twice a month. In early January 2015, Mother requested a detox from Suboxone, which was a step-down process.

         {¶ 28} However, instead of complying with a tapering-down process, Mother took the Suboxone as normally prescribed. She went without Suboxone for several days and ended up going back to Clearing Paths to ask for help because she was sick. According to the medical records, mother complained of withdrawal symptoms on February 6, 2015. She then asked to be put back on Suboxone on March 13, 2015. Drug screens indicated that Mother tested positive for benzodiazepines in March 2015; for Suboxone in April 2015; and for Suboxone and some type of opiate in May 2015. ...

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