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In re Da.R.

Court of Appeals of Ohio, Third District, Shelby

June 10, 2019

IN RE: DA.R. ADJUDGED DEPENDENT CHILD. [FELICITY BERRY - APPELLANT] [JOSHUA ROSS - APPELLANT]

          Appeal 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

          OPINION

          WILLAMOWSKI, J.

         {¶1} 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.

         {¶2} 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.[1] 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 recommended. Id.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.[2] Doc. 88.

         {¶6} 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.

         {¶7} 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] immediately.
* Placement: [Da.R.] should be placed for adoption immediately.

Id. at 5-6.

         {¶8} 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.

         Berry's First Assignment of Error

         [The 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 home.

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 been terminated.
Berry's Third Assignment of Error
The trial court violated [Berry's] U.S. Constitutional Fourteenth Amendment Right to due process and equal ...

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