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In re L.R.

Court of Appeals of Ohio, Ninth District, Summit

June 12, 2019

IN RE: L.R., L.R.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 16-06-000495 DN 16-06-000496

          PAMELA A. HAWKINS, Attorney at Law, for Appellant.

          MADELINE LEPIDI-CARINO, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          CHRISTINE BOLLMAN, Attorney for the Guardian ad Litem.

          DECISION AND JOURNAL ENTRY

          HENSAL, JUDGE.

         {¶1} Appellants Mother and Father appeal the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights to their children 1-L.R. and 2-L.R. and placed the children in the permanent custody of appellee Summit County Children Services Board ("CSB" or "the agency"). This Court affirms.

         I.

         {¶2} Mother and Father are the biological parents of 1-L.R. (d.o.b. 2/9/14) and 2-L.R. (d.o.b. 5/23/16). Both children are medically fragile and suffer from multiple serious conditions. 1-L.R. has chronically experienced a failure to thrive, gaining weight during his multiple hospitalizations, but losing weight quickly again when back in the care of Mother and Father. 2-L.R. was born extremely prematurely. At the time of 2-L.R's birth, 1-L.R. was receiving treatment during one of his many hospitalizations. Based on the parents' failure to manage 1-L.R.'s medical conditions, CSB filed a complaint alleging that child to be neglected and dependent. The same day, the agency filed a complaint alleging 2-L.R. to be a dependent child based on Mother's and Father's failure to consistently feed and visit with the premature infant in the hospital. By stipulation of the parties, both children were placed in the emergency temporary custody of CSB upon their respective releases from the hospital.

         {¶3} Based upon CSB's dismissal of its allegations of neglect regarding 1-L.R. and one of two allegations of dependency regarding 2-L.R., Mother and Father waived their rights to an adjudicatory hearing and stipulated that both children were dependent pursuant to Revised Code Section 2151.04(C). Thereafter, Mother and Father waived their rights to a dispositional hearing and agreed to placement of the children in the temporary custody of CSB. Mother and Father were to have supervised visitations with the children. The juvenile court adopted the agency's proposed case plan as the order of the court. Mother's and Father's initial objectives included that they (1) work with medical professionals to understand how to care for the children's medical needs and demonstrate that ability, (2) obtain mental health assessments and follow all recommendations, and (3) obtain and maintain safe and stable housing. The juvenile court further found that CSB had used reasonable efforts to prevent the continued removal of the children from their home.

         {¶4} At the first review hearing, the magistrate again made the same reasonable efforts finding. The children continued in the agency's temporary custody. Five months later at another review hearing, the magistrate once more found that CSB had used reasonable efforts to prevent the continued removal of the children from their home. The magistrate maintained 1-L.R. and 2-L.R. in the agency's temporary custody but ordered a liberal increase in the parents' visitation based in part on the recommendation of the guardian ad litem that the children be returned to Mother's legal custody under protective supervision of CSB.

         {¶5} On May 3, 2017, the agency filed an amended case plan, noting that the children had been moved to an out-of-county foster home better equipped to handle the children's medical issues, and recognizing that there may be challenges to the parents' ability to visit based on the distance of the placement. CSB also added case plan objectives requiring Mother and Father to submit to mental health diagnostic and parenting assessments at Summit Psychological Associates. Approximately three weeks later, the agency filed a motion for permanent custody. As grounds, CSB alleged that the children should not or cannot be returned to Mother and Father based on their failures to remedy the conditions that led to the children's removal, as well as the parents' chronic mental health and other delays that prevented them from providing an adequate permanent home. Mother and Father each filed motions for legal custody.

         {¶6} On July 5, 2017, CSB filed another amended case plan adding more requirements for Mother and Father, including: (1) basic and specialized parenting education addressing the children's medical conditions and needs, (2) smoking cessation programs due to the children's respiratory issues, and (3) attendance at all medical and specialized educational services appointments for the children. In addition, Father was required to (1) submit to a psychiatric evaluation, and (2) participate in outpatient substance abuse treatment, abstain from drugs and alcohol, and submit to urine screens. Father filed objections to the proposed amended case plan. After a hearing, the magistrate rejected the July 5, 2017 amended case plan and adopted the May 3, 2017 amended case plan.

         {¶7} CSB opposed Father's objections to the July 5, 2017 amended case plan. The guardian ad litem filed a report recommending rejection of the July 5, 2017 amended case plan. After a hearing, the magistrate adopted the July 5, 2017 amended case plan except for the requirement for Father to participate in drug and alcohol treatment and submit to urine screens. Instead, the magistrate ordered Father to complete a drug and alcohol abuse evaluation. Father moved to set aside the magistrate's order. The juvenile court denied Father's motion and adopted the July 5, 2017 amended case plan with the modifications ordered by the magistrate.

         {¶8} Mother's and Father's parenting assessments identified delays hindering their abilities to appropriately parent their medically fragile children. Accordingly, CSB moved to withdraw its motion for permanent custody, and instead moved for a retroactive first six-month extension of temporary custody, as well as a second six-month extension, to allow the parents time to work on those issues in pursuit of reunification.

         {¶9} The visiting judge assigned to proceed over the permanent custody hearing held a status hearing and issued the following orders. He removed the agency protective caseworker and ordered the appointment of a different caseworker. The visiting judge adopted the recommendations in the most recent report of the guardian ad litem, specifically: (1) to maintain the children in CSB's temporary custody; (2) that CSB allow Mother and Father access to the children's online MyChart accounts relating to medical appointments and reports; (3) that CSB provide Mother and Father with immediate training relating to the children's gastronomy tube ("G-tube") feedings; (4) that CSB allow visitations outside the visitation center once the parents have demonstrated the ability to administer G-tube feedings appropriately; (5) that CSB ensure that the children continue to receive developmental treatment; (6) that CSB continue providing transportation assistance to Mother and Father; (7) that Mother and Father attend all of the children's medical appointments and follow through as advised; (8) that Mother and Father maintain safe and stable housing; and (9) that Mother continue counseling and complete parenting classes. In addition, the juvenile court ordered the guardian ad litem to coordinate with the children's medical professionals to create a check list for the parents to facilitate G-tube feedings. Medical professionals were ordered to supervise the children's feedings by Mother and Father until the professionals determined that the parents could feed 1-L.R. and 2-L.R. without supervision. The visiting judge thereafter had no further involvement in the case below.

         {¶10} A new caseworker was appointed to oversee the case. At the same time, a new court appointed special advocate assumed the role of the guardian ad litem to represent the best interest of the children.

         {¶11} At a review hearing 23 months into the case, the magistrate found that CSB had used reasonable efforts to prevent the continued removal of the children from their home. No party moved to set aside the magistrate's order. Two weeks later, CSB filed its second motion for permanent custody. Mother and Father filed individual motions for legal custody.

         {¶12} At the permanent custody hearing, the parties stipulated to CSB's allegation that the children had been in the temporary custody of the agency for 12 of the prior 22 consecutive months. After finding that it was in the best interest of the children, the juvenile court placed 1-L.R. and 2-L.R. in the permanent custody of CSB. The juvenile court further found that the agency had used reasonable efforts to prevent the continued removal of the children from their home. Mother and Father filed timely appeals in which they each raise two assignments of error. This Court consolidates the parents' assignments of error where they address the same issues to facilitate review.

         MOTHER'S ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO [CSB] OF [THE CHILDREN] WHEN THE AGENCY FAILED TO PROVIDE REFERRALS TO ACCESSIBLE SERVICES, COMPLY WITH COURT ORDERS, AND MAKE REASONABLE EFFORTS TO REUNIFY THE FAMILY.

         FATHER'S ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF [THE CHILDREN] TO [CSB] WHEN THE AGENCY FAILED TO COMPLY WITH COURT ORDERS AND PROVIDE REASONABLE EFFORTS TO REUNIFY THE FAMILY.

         {¶13} Mother and Father argue that the juvenile court erred by granting permanent custody of the children to CSB, because the agency failed to use reasonable efforts to reunify ...


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