Court of Appeals of Ohio, Twelfth District, Butler
FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION
Case No. JN2014-0268
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, Government Services Center, for appellee
Olivas, guardian ad litem Dawn S. Garrett, for appellant
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.
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
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.
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.
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 ...