IN RE: DA.R. ADJUDGED DEPENDENT CHILD. [FELICITY BERRY - APPELLANT] [JOSHUA ROSS - APPELLANT]
from Shelby County Common Pleas Court Juvenile Division Trial
Court No. 2016-DEP-0002
Kristina M. Morris for Appellant
Felicity Berry Jeremy M. Tomb, for Appellant Joshua Ross
Aaron Lowe for Appellee
Appellants Felicity Berry ("Berry") and Joshua Ross
("Ross") bring this appeal from the judgment of the
Court of Common Pleas of Shelby County, Juvenile Division
terminating their parental rights. Both parties challenge the
decision of the trial court finding that it was in in the
best interest of the children to terminate their rights. For
the reasons set forth below, the judgment is affirmed.
Da.R. was born in July of 2016 to Berry and Ross. Doc. 2.
Before Da.R. was released from the hospital, the Shelby
County Department of Job and Family Services ("the
Agency") filed a complaint to take temporary custody of
the child. Doc. 1. The basis for the complaint was that
Da.R.'s older sibling was removed from the home in July
of 2015 due to dependency and that the reasons for the
removal had yet to be remedied. Doc. 2. The trial court granted
an ex parte emergency custody motion and set the matter for a
hearing. Doc. 4. This entry noted that the Agency had made
reasonable efforts to prevent the child from being removed
from the home. Id. The hearing was held on July 18,
2016. Doc. 25. After the hearing, the trial court ordered
that Da.R. would remain in the temporary custody of the
Agency and determined that reasonable efforts had been made
by the Agency to make a permanency plan. Id. On July
22, 2016, the Agency filed a case plan for the family. Doc.
22. The plan required Berry and Ross to 1) cooperate with
parenting coaches regarding child care, home maintenance and
safety, finances; 2) cooperate with medical experts to meet
the child's developmental and medical needs; 3) cooperate
with developmental disabilities services; 4) cooperate with
the professional advice offered by the team; and 5) complete
psychological evaluations and complete mental health services
On August 25, 2016, an adjudicatory hearing was held. Doc.
38. Both Berry and Ross admitted at the hearing that Da.R.
was a dependent child. Id. The trial court then made
that finding and ordered that Da.R. remain in the temporary
custody of the Agency pending disposition. Id. The
trial court also determined that the Agency had made
reasonable efforts "to eliminate the removal of the
child from the home of a parent, however due to the
parents' inability to provide proper care for the child
at this time, it is in the child's best interest to
remain in the custody of [the Agency]." Id.
On October 6, 2016, the GAL filed her report regarding the
disposition of the matter. Doc. 41. The GAL indicated that
she had personally visited with the child, Ross, Berry, the
foster parents, the home coaches, the caseworker, and other
people. Id. The GAL also indicated that she had
reviewed the Agency's case file and the home studies.
Id. The GAL recommended that custody remain with the
Agency. Id. The disposition hearing was held on
October 13, 2016. Doc. 43. The trial court ordered that Da.R.
would remain in the temporary custody of the Agency. The
trial court also adopted the case plan previously filed by
the Agency. Id.
On November 1, 2016, the Agency filed a motion for permanent
custody of Da.R. and his older sibling. Doc. 47. The Agency
then filed an amended case plan on December 1, 2016, which
reflected the change of goal from reunification to adoption.
Doc. 59. However, this motion was subsequently
withdrawn. Doc. 88.
On July 19, 2017, the Agency filed its annual review of the
case plan. Doc. 107. The review showed that although Berry
and Ross had completed the psychological evaluations and were
continuing to work with mental health services, there was
only some progress on the case plan. Id. A new case
plan was filed on November 2, 2017, when Da.R. was moved to a
new foster home. The case plan was again modified on November
13, 2017, when his older sibling was removed from the case
plan due to permanent custody of the sibling having been
granted to the Agency. Doc. 121. The modified plan contained
the same requirements as the previous plans.
On February 8, 2018, the Agency file a motion for permanent
custody of Da.R. Doc. 127. The basis for the motion was that
Da.R. had been in the custody of the Agency for twelve or
more months of the prior twenty-two month period, that the
parents had failed to remedy the conditions causing the
placement out of the home and that termination of parental
rights would be in the best interest of Da.R. Id.
The GAL filed her report regarding the motion for permanent
custody on June 8, 2018. Doc. 182. The GAL noted that Da.R.
is developmentally behind and has physical issues which
require weekly speech therapy, physical therapy, and
occupational therapy. Id. She also noted that Da.R.
wears glasses and has "braces" on his feet due to
muscle weakness. Id. The GAL indicated that although
the parents have provided a stable home, it has not been
maintained in a safe and clean manner for extended periods of
time without help. Id. The GAL noted that she had
spoken repeatedly with the parents, the foster parents, and
the team members. Id. She also noted that she had
reviewed all of the records in the file. Id. The GAL
then made the following conclusions in her report.
Although this is very unfortunate for all concerned, [Ross
and Berry], in my opinion cannot safely take care of
[Da.R.] without a level of constant supervision. This is
apparent due to the abundant resources that have been given
to them during this past 23 month period. For all of the
resources, there has been little to no consistent improvement
in [Ross and Berry's] parenting skills to warrant more
time with the parents to the detriment of [Da.R.].
Bottom line is that [Ross and Berry] have made NO
advances in the area of following instructions: home
safety (i.e. dresser drawers standing open, expired food in
the refrigerator, dirty dishes, etc.); marking important
appointments on the calendar; taking accurate notes at
doctor's appointments for future reference even though
there has been constant and consistent help given to them
through [the Agency].
Therefore, I recommend the following actions be taken:
*Custody: Permanent custody should be given to [the Agency]
* Placement: [Da.R.] should be placed for adoption
Id. at 5-6.
The permanent custody hearing was held from June 18 to June
22, 2018. On August 21, 2018, the trial court entered
judgment granting the Agency's motion for permanent
custody and terminating the parental rights of Berry and
Ross. Doc. 217. Both parents filed timely notices of appeal.
The following assignments of error are raised on appeal.
First Assignment of Error
Agency] failed to provide reasonable case planning and
diligent efforts to assist [Berry] to remedy the conditions
that initially caused the removal of the minor child from the
Berry's Second Assignment of Error
[The Agency] failed to show by clear and convincing evidence
that the permanent parental rights of [Berry] should have
Berry's Third Assignment of Error
The trial court violated [Berry's] U.S. Constitutional
Fourteenth Amendment Right to due process and equal