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In re B.L.

Court of Appeals of Ohio, Twelfth District, Butler

February 12, 2018

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


          Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, for appellee

          Adolfo Olivas, guardian ad litem Dawn S. Garrett, for appellant


          HENDRICKSON, P.J.

         {¶ 1} Father, the biological father of B.L.1 and B.L.2, appeals the decisions of the Butler County Common Pleas Court, Juvenile Division, which granted permanent custody of his children to the Butler County Department of Job and Family Services. For the reasons discussed below, this court affirms the decisions of the juvenile court.

         {¶ 2} On July 14, 2014, the Butler County Department of Job and Family Services ("JFS" or "the agency") filed a complaint alleging that B.L.1, age one, and B.L.2, age six months, were neglected, abused, and dependent children. The complaint alleged that the children's parents had a history with JFS dating back to 2007 with concerns of physical abuse and neglect. The complaint alleged that B.L.1 was observed lying in a crib with feces. B.L2 was in a "bouncy seat" or car seat and could barely move. There was no food in the home other than a few canned goods. Both parents admitted to abusing drugs and Mother appeared to be under the influence at the time police removed the children.[1]

         {¶ 3} The complaint requested that the court grant temporary custody of the children to JFS. The court held an emergency ex parte hearing on the same day and granted JFS temporary custody. JFS placed the children in foster care.

         {¶ 4} JFS created a case plan for reunification. The case plan required Mother and Father to refrain from substance abuse, submit to random drug tests, and seek treatment for substance abuse. Mother and Father were also required to obtain and maintain stable housing and complete a parenting program.

         {¶ 5} In August 2014, following JFS' request, the court transferred temporary custody of the children to their maternal aunt. In September 2014, the court adjudicated the children neglected, abused, and dependent. In April 2014, after the maternal aunt informed the agency she could no longer care for the children, the court placed the children back in the agency's temporary custody. JFS placed the children in foster care.

         {¶ 6} The parents made some progress towards reunification. Father made some of this progress while in jail, as he was incarcerated from the time of removal through January 2015. After his release from jail, Father did not test positive for illegal narcotics and established stable housing for nine months. Eventually, the agency began to liberate the parents' visits with their children, going so far as to allow overnight unsupervised visitation and weekend visits. However, by the summer of 2016, Mother and Father relapsed. Neither parent appeared for a July 2016 hearing. After the relapse, both parents minimally participated in recommended substance abuse treatment and then ceased communication with the agency. The agency then moved to restrict visitations to supervised visits only.

         {¶ 7} In October 2016, the court held a review hearing wherein it found that neither parent was participating in case plan services and both were avoiding drug screens. JFS then moved for permanent custody. In November 2016, the agency removed Mother from the case plan for failure to participate in case plan services and communicate with the agency for several months.

         {¶ 8} In April 2017, Father filed a "brief on interstate placement of children when interstate home study is denied as applied to custody proceedings" ("brief on ICPC"). In the brief, Father stated that shortly after the children's removal in 2014, JFS requested that a Texas children services agency conduct an interstate home study on the children's maternal grandmother, a Texas resident. JFS made the request pursuant to Ohio's interstate compact on the placement of children ("ICPC"). The Texas agency approved the grandmother's home study. However, JFS considered the grandmother a "backup plan" legal custodian, as the children were placed locally with the maternal aunt.

         {¶ 9} Sometime after the agency filed the permanent custody motion, Father's brief alleged that he and Mother requested the agency place the children with the grandmother in lieu of permanent custody. The agency then requested a second home study.[2]

         {¶ 10} The Texas agency did not approve the second home study. Of primary concern, the Texas agency indicated that the grandmother did not believe that the children should have been removed from Mother and Father. Grandmother also exhibited poor decision-making skills. Several relatives expressed concern to the Texas agency concerning the grandmother's suitability. Overall, the agency was concerned that the grandmother demonstrated an inability to provide the children with a structured environment and to protect the children.

         {¶ 11} Father argued that the second home study significantly conflicted with the findings of the first home study and he therefore wished to challenge the second home study. The ICPC required Father to appeal the Texas home study decision through available appellate remedies in Texas. However, Texas did not allow appeal of failed home studies. Accordingly, Father argued that his inability to appeal the Texas agency's decision amounted to an unconstitutional denial of his due process rights. Father requested that the court permit him to present evidence as to why the grandmother was an appropriate legal custodian.

         {¶ 12} The court held a hearing and denied the brief on ICPC on the basis that Ohio was an inappropriate forum to challenge a Texas policy or law. The court also indicated it would not hear any evidence on placement with the grandmother. Father did not proffer any evidence.

         {¶ 13} In May 2017, the juvenile court held the hearing on permanent custody. The court heard testimony from the JFS caseworker assigned to the case and from Father. Mother did not appear for the hearing or otherwise defend against the permanent custody motion.[3]

         {¶ 14} At the hearing, the caseworker testified that she was assigned to the case in November 2014. Initially, Mother and Father made progress on their case plan for reunification. Both completed a program on "living skills" and initially maintained stable housing and employment. Father also completed an out-patient drug treatment program. However, following Mother's and Father's drug relapse in or around the summer of 2016, Father stopped participating in case services and only had sporadic communication with the caseworker, including gaps of months between communication. At the time of the permanent custody hearing, Father did not have stable housing and was living with a friend. Father exercised visitation and the visits went well, although the caseworker did not observe a bond between Father and the children.

         {¶ 15} Father testified that he was in jail from the time of the children's removal in July 2014 through January 2015. Father was also incarcerated in February 2017 for a probation violation and an aggravated menacing charge. Father was ...

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