Court of Appeals of Ohio, Eighth District, Cuyahoga
IN RE: Da.B., ET AL. A Minor Child [Appeal By Father, D.B.]
Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division Case Nos. AD 15916030, AD 15916031, and AD
ATTORNEY FOR APPELLANT FATHER Michael E. Stinn.
ATTORNEYS FOR APPELLEES For C.C.D.C.F.S. Michael C.
O'Malley Cuyahoga County Prosecutor BY: Anthony R. Beery
Assistant County Prosecutor.
L.M., Mother Christopher R. Lenahan.
Guardian Ad Litem for Children Pinkie Lue Clark.
Guardian Ad Litem for Appellant Carla L. Golubovic.
Guardian Ad Litem for Mother Suzanne H. Adrain-Piccorelli.
BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE.
Appellant, D.B. ("father"), appeals the juvenile
court's judgment granting permanent custody of his three
minor children - Da.B. (d.o.b. June 15, 2002), Di.B. (d.o.b.
October 23, 2006), and I.B. (d.o.b. January 10, 2009)
(collectively "the children") - to the Cuyahoga
County Department of Children and Family Services
("CCDCFS" or "the agency"). He raises two
assignments of error for our review:
1. The trial court abused its discretion when it denied
Appellant Father D.B.'s motion for an extension of
2. The trial court's order granting Appellee Cuyahoga
County Division of Children Services' motion to modify
temporary custody to permanent custody is against the
manifest weight of the evidence and should be vacated.
Finding no merit to his appeal, we affirm.
Procedural History and Factual Background
On November 16, 2015, CCDCFS filed a complaint seeking
temporary custody of Da.B., Di.B., and I.B. after father was
arrested and incarcerated for rape charges on November 14,
2015, requiring law enforcement to remove the children from
the home. According to CCDCFS's amended complaint filed
on November 20, 2015, father gained custody of the children
after their mother ("mother") lost custody in
August 2011 due to her substance-abuse and anger-management
issues, which she had yet to resolve. The amended complaint
also alleged that the children's mother "failed to
maintain a relationship with the children and her ability to
provide care for them is unknown at this time."
On February 11, 2016, a hearing was held before the
magistrate, where social workers for CCDCFS, counsel for
mother, father, and CCDCFS, and guardians ad litem for mother
and the children were present. The magistrate found that the
children were neglected and dependent and committed them to
the temporary custody of CCDCFS. On February 29, 2016, the
juvenile court judge adopted the magistrate's decision.
In its order, the juvenile court noted that father was
incarcerated. The court also noted that the permanency plan
for the children was reunification.
During pretrial proceedings, the court appointed a guardian
ad litem and counsel for the children's mother, the
children, and father. The juvenile court also held an in
camera hearing, during which the children, the children's
counsel, and guardians ad litem were present.
On August 12, 2016, approximately nine months after it
received temporary custody of the children, CCDCFS moved to
modify temporary custody to permanent custody on the basis
that the children could not be placed with either parent
within a reasonable time and that permanent custody was in
the children's best interest. In support of its motion,
the agency attached the affidavit of Lateisha Ollison, a
child-protection specialist with CCDCFS. In her affidavit,
Ollison stated that the case plan filed with and approved by
the juvenile court required father and mother to provide the
children's basic needs as well as stable, appropriate
housing for the children. The affidavit stated that mother
"has failed to make herself available for case plan
services[, ]" "has longstanding, unaddressed mental
health and substance abuse issues[, ]" and lost custody
of two other children not subject to the current litigation.
The affidavit also stated, "Father is incarcerated
pursuant to pending charges for rape, kidnapping, gross
sexual imposition, felonious assault, and robbery."
CCDCFS produced Ollison's semiannual review
("SAR") report, which is an extensive outline of
each child's case plan and services, progress, and
barriers to progress; history of visitation by the parents;
plans for permanency; and an outline of steps and actions
taken in the children's custody cases so far. The report
reflected that father was currently being held in a locked
facility with no expected release date and was unable to make
any progress on his case plan due to his inpatient status as
of August 23, 2016, at Northcoast Behavioral Healthcare.
The matter proceeded to an evidentiary hearing held on May 4,
2017. At the hearing, father's attorney informed the
court that father did not agree to stipulating to the report
filed in his criminal case that found him to be incompetent.
Father's attorney explained that father was in the
process of firing his previous attorney in his criminal case.
The juvenile court noted that the finding of incompetence had
yet to be vacated by the trial court.
The state called two witnesses, Lateisha Ollison and Arvella
Fike, both of whom were child-protection specialists with
CCDCFS. Ollison explained that she was the initial
child-protection specialist assigned to the case in November
2015, when the initial complaint for temporary custody was
filed, and stayed on the case until December 2016. Ollison
stated that she had limited interactions with the
children's mother, who had a history of unsuitable
housing for the children and substance abuse issues. She
testified that father was incarcerated during the time that
she had the case and that his case plan was to provide for
the children's basic needs, which he could not do while
incarcerated. Ollison stated that the concerns related to
father were that he failed to arrange a caregiver for the
children and, besides phone calls with Da.B. and the delivery
of Christmas presents to Da.B., had little involvement in the
children's lives while he was incarcerated. Ollison
testified that Da.B. was currently at InFocus, a group home,
and Di.B. and I.B. were in a foster home in Youngstown, Ohio.
Ollison explained that because the younger children's
foster mom was not comfortable giving father her cell phone
number, Ollison gave him her cell phone number so that he
could call Ollison when she visited Di.B. and I.B.; however,
father never called. She also explained that while father
indicated that he was frustrated he could not speak to Di.B.
and I.B., he did not want them visiting him at Northcoast
Behavioral Healthcare. Ollison stated that the children
indicated that they would like to go home with father.
The state next called Fike, who explained that the
children's case was transferred to her in December 2016.
She testified that she was only able to speak to the
children's mother once over the phone, during which time
the children's mother stated that she did not have stable
housing. Fike stated that neither she nor the children had
contact with mother since. She then stated that at the time
she took over the case, father was at Northcoast Behavioral
Healthcare, but knew that at the time of the hearing, he had
been moved back to the city jail. During her testimony, the
state introduced a journal entry from father's criminal
case that stated that he was incompetent to stand trial and
was referred to Northcoast Behavioral Healthcare. Fike
testified that she had a few contacts with father concerning
possible caregivers for the children as well as opportunities
to speak and visit with the children. Fike explained,
however, that the potential caregivers identified by father
informed her that they did not want to care for the children.
Fike stated that she was unaware of a possible release date
for father from jail and recommended that the children be
placed in CCDCFS's permanent custody.
On cross-examination, Fike stated that she spoke with father
two times over the past five months. She testified that she
knew father was in constant contact with Da.B. and that Di.B.
and I.B.'s foster mom had concerns about giving father
her personal contact information. Fike then stated that when
she asked Da.B. if he would want to return home with his
father if he was released, Da.B. shrugged his shoulders and
said he was not sure. Fike stated that Di.B. and I.B.
indicated that while they loved their father, they understood
that they could not live with him at the time.
The court then heard from the children's guardian ad
litem, Pinkie Clark, who described the children's
placements. She indicated that father was still incarcerated
and that the children needed permanency. She stated that she
believed awarding permanent custody to CCDCFS was in the
children's best interest. Clark stated that during their
last conversation, the children indicated that they would
like to live with father. She also admitted that the children
would want to go home if that were an option, but that they
understood that he was incarcerated and, therefore, returning
home was not an option.
In its journal entry, the court made the following findings:
[Notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
problems that initially caused the [children] to be placed
outside the home, the parents have failed continuously and
repeatedly to substantially remedy the conditions causing the
[children] to be placed outside the [children's] home. *
The [children] cannot be placed with either of the
[children's] parents within a reasonable time or should
not be placed with the [children's] parents. * * *
Father has a chronic mental illness that is so severe that it
makes the father unable to provide an adequate, permanent
home for the [children] at the present time and, as
anticipated, within one (1) year after the Court holds the
hearing in this matter. Father was found incompetent to stand
trial on August 23, 2016, by Dr. Nicole A. Livingston.
Further, Dr. Livingston's report was stipulated to by the
father with assistance of counsel.
Father has neglected the [children] between the date the
original complaint was filed and the date of the filing of
this motion by the failure to regularly visit, communicate,
or support the [children] due to his ...