Court of Appeals of Ohio, Fourth District, Athens
IN THE MATTER OF: A.M., Adjudicated Dependent Child.
CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
Gieske, Cincinnati, Ohio, for Appellant.
M. Saunders, Assistant Athens County Prosecuting Attorney,
Athens, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
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
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
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. 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
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
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
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
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,  appellant has not tested positive for
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
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
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
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
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 ...