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In re A.M.

Court of Appeals of Ohio, Fourth District, Athens

May 16, 2018

IN THE MATTER OF: A.M., Adjudicated Dependent Child.

          CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION

          Krista Gieske, Cincinnati, Ohio, for Appellant.

          Merry M. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          PETER B. ABELE, JUDGE

         {¶ 1} This is an appeal from an Athens County Common Pleas Court, Juvenile Division, judgment that granted Athens County Children Services (ACCS), appellee herein, permanent custody of two-year-old A.M. L.B., the child's biological mother and appellant herein, raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:
"THE JUVENILE COURT'S DECISION AWARDING PERMANENT CUSTODY OF A.M. TO ATHENS COUNTY CHILDREN SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE"
SECOND ASSIGNMENT OF ERROR:
"MOTHER WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO PURSUE ALTERNATIVE RELIEF BY MOVING THE JUVENILE COURT FOR AN ORDER SETTING FORTH A VISITATION SCHEDULE AFTER ALL PARTIES INDICATED THEIR SUPPORT FOR SUCH AN ORDER ON THE RECORD AT THE HEARING."

         {¶ 2} Appellant and B.M. are the child's biological parents. Appellant has mental health and substance abuse issues. B.M., who is currently incarcerated and will remain so until June 2019, is not involved in this appeal. A.M. suffers from Bardet-Biedl syndrome, a genetic condition that carries a host of medical issues and that requires extensive medical care.

         {¶ 3} In September 2016, appellee learned that appellant left the then one-year-old child in an acquaintance's care and that appellant did not give the acquaintance a way to contact her. Appellant gave the acquaintance a baby bag that contained baby food and a burnt spoon with what appeared to be blood on it.

         {¶ 4} After appellee received this report, a caseworker met with appellant. The caseworker reported that appellant appeared to be falling asleep, but appellant denied taking any drugs. Appellant informed the caseworker that the child has scoliosis, extra digits, and enlarged kidneys. Appellant also stated "that she had worms coming out of her eyes and that A.M. also had worms coming out of his back." The caseworker noted that appellant's face, neck, and arms were covered with "open, bleeding sores" and that the child also had sores and scratches on his back.[1] The caseworker advised appellant to go to the emergency room.

         {¶ 5} At the emergency room, appellant took a drug test. The drug test returned positive for opiates and amphetamines.

         {¶ 6} Appellee filed a complaint that alleged the child is a dependent and neglected child. The trial court subsequently adjudicated the child dependent and placed the child in appellee's temporary custody. The court dismissed the neglect allegation.

         {¶ 7} On July 20, 2017, appellee filed a motion to modify the disposition to permanent custody. Appellee alleged that the child cannot be placed with either parent within a reasonable time, or should not be placed with either parent, and that placing the child in appellee's permanent custody is in the child's best interest.

         {¶ 8} At the permanent custody hearing, Teresa Mills testified that on March 16, 2017 the child first entered her care and has remained in her home since that time. Mills stated that when the child first entered her home, he exhibited developmental delays. She explained that the child "would just lay on his back and he would roll different places." Mills related that the child could sit up with assistance, but if he started to fall, he could not, and still cannot, catch himself. Mills indicated that the child receives physical, as well as occupational, therapy once per week and that Help Me Grow provides assistance twice per month. Mills stated that the child has not started speech therapy, but she is looking into it.

         {¶ 9} Mills testified that the child also has other medical issues that require extensive care. Mills explained that the child initially had weekly appointments at Nationwide Children's Hospital in Columbus, but now, it varies between one to two appointments per month. Mills stated that a complex care team at Nationwide Children's monitors the child.

         {¶ 10} Mills related that she quit her job in order to stay home and provide constant care for the child. Mills indicated that she developed a routine to follow with the child in order to help address his issues. After waking up, she works on his legs by setting him up in a gait trainer. She explained that the child cannot get around without the trainer. Mills stated that the child has started to eat more food on his own, but still cannot use a spoon. Mills testified that she has "to do everything for him cause he can't"

         {¶ 11} Mills indicated that she and her husband are interested in caring for the child "long-term." Mills stated that her daughter and A.M. get along "awesome." Mills explained that appellant appears excited to see the child during visits, but that the child is "kind of stand offish when it comes to different people and stuff."

         {¶ 12} Mills related that she informed appellant that if appellant remains drug-free and keeps her mental health issues under control, then Mills would not "have a problem with [the child] going to visit [appellant], going out to eat, and to the park and different places." Mills further explained that in August 2017, appellee indicated that it would allow appellant to visit with the child off-site. Appellee indicated that Mills and appellant should arrange visits off-site, but appellee later advised Mills that they had to wait until the court changed visitations.

         {¶ 13} Stephanie Russell, appellant's case manager at Integrated Services, testified that she has been working with appellant since December 2016. Russell explained that she has helped appellant with nearly all of her transportation needs to ensure that she attended her visits with the child, her psychiatric appointments, her counseling, and her substance abuse treatment. Russell indicated that appellant sometimes walks to appointments, but Russell otherwise provides appellant with all of her transportation needs.

         {¶ 14} Russell related that she also helped appellant obtain housing and that appellant has independently maintained that housing. Russell stated that the mother receives housing assistance, food stamps, and cash assistance and that Russell believes that appellant's apartment would be physically appropriate for the child, as long as the child had assistance.

         {¶ 15} Russell explained that she also helps appellant keep track of her appointments and ensures that appellant attends them. Russell indicated that appellant has done "quite well in the last couple of months as far keeping her own, " but Russell "definitely [is] a key component of that."

         {¶ 16} Russell testified that she sees appellant about every other day. Russell related that she has attempted to reduce her role, but when the parties tried to allow appellant the opportunity to use transportation that appellee provided, appellant had "a hard time making sure that she was up and outside for" her transportation.

         {¶ 17} Russell further stated that appellant completed a substance abuse assessment, receives mental health counseling, takes her prescribed medication, and sees a counselor once per week. Russell indicated that appellant has the following mental health diagnoses: bipolar, anxiety, and borderline personality disorder.

         {¶ 18} ACCS caseworker Hannah Jeffers testified that she has worked with the family since September 2016. Jeffers explained that appellant's case plan required appellant to obtain appropriate housing, address her mental health issues, improve her protective capacities, and attend to her own medical care. Jeffers further indicated that appellant displayed signs of substance abuse. Between September 2016 and May 2017, appellant tested positive for opiates, Tramadol, methamphetamine, and marijuana. Jeffers stated that since July 2017, when appellant started treatment with Dr. Ford, [2] appellant has not tested positive for other drugs.

         {¶ 19} Jeffers further related that appellant visits with the child twice per week for one hour at a time. Jeffers explained that appellant originally had two-hour visits, but appellant later "expressed that * * * one hour was sufficient." Jeffers stated that appellant did not ask to increase the length of her visits, but they did discuss off-site visits. Jeffers indicated that she is not opposed to off-site visits, but the parties have not yet arranged off-site visits due to scheduling difficulties

         {¶ 20} Jeffers testified that the child is doing well in his current placement and showing improvement. The child uses a gait trainer and can maneuver throughout the house. She explained that when the child first entered appellee's custody, the child was able to "look at you, " but not much else; he was "very catatonic." After the child entered appellee's care, the child tested positive for Bardet-Biedl syndrome. Jeffers stated that since the child entered appellee's temporary custody, he has undergone surgery to remove extra digits from his hands and feet, to remove his adenoids, to correct penile torsion, and to place tubes in his ears. Jeffers indicated that the child has had a team of doctors: a neurologist, an ophthalmologist, and a cardiologist. She explained that the child's kidneys excrete too much fluid and that blindness can occur. Jeffers testified that the child needs a caregiver who is able to maintain and follow-up with all of his medical appointments.

         {¶ 21} Jeffers stated that she discussed the importance of the child's needs with appellant and that appellant is aware of what the child needs. She further indicated, however, that "[t]he concern is consistency and the accountability to make sure that this child goes to all of his appointments and has all of his medical needs addressed and intervene when they are at a potential to be life threatening." Jeffers does not believe appellant is able to do this on a consistent, ongoing basis. Jeffers explained that the mother's substance abuse treatment is ongoing and that "[h]er definite lack of energy is going to be one of the issues." Jeffers related that the child is "really dependent on an adult for all of his needs" and that she does not believe appellant is capable of meeting the child's needs.

         {¶ 22} Jeffers believes that placing the child in appellee's permanent custody is in his best interest. She does not believe that it is in the child's best interest to extend the case so that appellant can have additional time to address her issues. Jeffers agrees that appellant has done well for the past six months, but she does not agree that appellant has progressed to the point where she can safely care for the child and meet all of his needs.

         {¶ 23} Katie Edenfield, the child's guardian ad litem, testified that she believes that placing the child in appellee's permanent custody is in his best interest. Edenfield explained that the child is "a high risk child who needs consistency and care." Edenfield related her concern regarding appellant's ability to provide for the child's needs. She noted that appellant had three other children permanently removed from her custody and that appellant suffers from chronic drug addiction. Edenfield agreed that appellant recently engaged in treatment, but further pointed out that appellant demonstrated inconsistency throughout the past.

         {¶ 24} Edenfield also indicated that she believes it is in the child's best interest to permit appellant to visit the child, as long as the current care providers supervise the visits. Edenfield testified that she would support a court order that required off-site visits with the child.

         {¶ 25} Appellant testified at the hearing. She admitted that in 2011, 2012 and 2013, she lost permanent custody of three other children due to substance abuse issues. Appellant explained that she has since tried to correct her mistakes so that she can be a good parent. Appellant stated that she currently sees Dr. Ford and attends drug treatment and mental health counseling.

         {¶ 26} Appellant claimed that she can provide for the child's needs, as long as she has help. She related that if the child cannot be returned to her, then she would like to continue a relationship with the child. Appellant indicated that instead of having court-ordered visits, she would prefer to work out an arrangement with the child's current care providers.

         {¶ 27} After hearing all of the evidence, on December 1, 2017 the trial court granted appellee permanent custody of the child. The court found that (1) the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, and (2) placing the child in appellee's permanent custody is in his best interest.

         {¶ 28} In particular, the trial court determined that pursuant to R.C. 2151.414(E)(1), (2), (11), and (12), the child cannot be placed with either parent within a reasonable time or should not be placed with either parent. The court found that R.C. 2151.414(E)(1) and (2) applies to appellant, because appellant has not

successfully and adequately address[ed] her medical, mental health, and substance abuse issues to the level necessary to be a parent to A.M., especially in light of his own special medical needs. Mother had seriously neglected his special needs prior to his emergency removal, and has remained inconsistent, or even unavailable since that time. Mother has a social services case manager assigned to her who sees her approximately every other day due to her "high needs." She lives alone and has no earned income or social security income. While mother has shown recent signs of more meaningful engagement in addressing her own issues, she remains unsuitable to parent this child.

         {¶ 29} The trial court additionally found that R.C. 2151.414(E)(11) applies to appellant. The court pointed out that the mother has had three other children permanently removed from her custody.

         {¶ 30} The trial court determined that R.C. 2151.414(E)(12) applies to the child's father. The court noted that the father has been in prison since December 2016, and will remain in prison until June 2019.

         {¶ 31} The trial court also considered the child's best interest. With respect to the child's interactions and interrelationships, the court stated: "A.M. has some relationship with his mother although visits have been inconsistent. He is doing well with his kinship caregivers. His father has been in prison since December 2016."

         {¶ 32} The trial court did consider the child's wishes, but found that the child "is too young to know the meaning of this action." The trial court next reviewed the child's custodial history and noted that he "lived with his mother and sometimes father until his emergency removal in September 2016. Since then, A.M. has been in the continuous custody of ACCS in a kinship placement."

         {¶ 33} The trial court also examined the child's need for a legally secure permanent placement and whether he could achieve that type of placement without granting appellee permanent custody. The court found that the child "needs and deserves a legally secure and permanent placement which can only be achieved with an order of permanent custody to ACCS." The court noted that the child "has significant medical concerns that will require numerous appointments and procedures with doctors and therapists. Father is in prison and mother has her own significant issues including medical, substance abuse, and mental health. Mother's mental health diagnosis include [sic] PTSD, Borderline Personality Disorder, Bi-Polar, and Anxiety Disorder."

         {¶ 34} The trial court also found that R.C. 2151.414(E)(11) applies because appellant lost her parental rights to three other children.

         {¶ 35} Consequently, the trial court granted appellee permanent custody ...


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