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In re Da.B.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

IN RE: Da.B., ET AL. A Minor Child [Appeal By Father, D.B.]

         Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD 15916030, AD 15916031, and AD 15916032


          ATTORNEYS FOR APPELLEES For C.C.D.C.F.S. Michael C. O'Malley Cuyahoga County Prosecutor BY: Anthony R. Beery Assistant County Prosecutor.

          For 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.



         {¶1} 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 temporary custody.
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.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} 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."

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 ...

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