APPEAL
FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION
Case No. 17-D000187
David
P. Fornshell, Warren County Prosecuting Attorney, Kristen A.
Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Caparella-Kraemer & Associates, LLC, Bradley M. Kraemer,
4841-A Rialto Road, West Chester, Ohio 45069, for appellant
paternal grandfather
A.
Aaron Aldridge, 130 East Mulberry Street, Lebanon, Ohio
45036, for appellant mother Sean Brinkman, 10 West Monument
Avenue, Dayton, Ohio 45402, guardian ad litem
OPINION
HENDRICKSON, P.J.
{¶
1} Appellants, the biological mother
("Mother") and paternal grandfather ("Paternal
Grandfather") of K.S., appeal from the decision of the
Warren County Court of Common Pleas, Juvenile Division,
granting permanent custody of K.S. to appellee, Warren County
Children Services ("WCCS" or "the
Agency"), and denying Paternal Grandfather's motion
for legal custody.
{¶
2} K.S. was born on November 29, 2015 to Mother, a
minor, and to Father, who is not a party to the present
appeal. When K.S. was born, Father was in jail awaiting trial
on charges related to his relationship with Mother. Mother
was living with her father and was on probation with the
Warren County Juvenile Court for drug-related issues. As part
of her probation, Mother was randomly drug screened, and she
tested positive for marijuana, benzodiazepines, MDMA, and
cocaine. WCCS instituted a safety plan and administered drug
screens to the safety plan participants, which included
Mother, Mother's father, and Mother's new boyfriend.
Mother and her boyfriend tested positive for Xanax and
marijuana and Mother's father tested positive for
marijuana, methamphetamines, and amphetamines.
{¶
3} On October 25, 2017, WCCS filed a complaint
alleging K.S. was a neglected and dependent child. On that
same date, the juvenile court held an emergency shelter care
hearing and K.S. was placed in the emergency shelter care of
the Agency. Mother, who was still a minor at this time, was
also placed in the Agency's custody.
{¶
4} On January 3, 2018, an adjudicatory hearing in
K.S.'s case was held. At this time, Mother and Father
stipulated that Father was currently incarcerated due to
offenses involving Mother and that Mother and her father had
tested positive for illegal drugs. The juvenile court
adjudicated K.S. a dependent and neglected child.
Subsequently, on January 18, 2018, the juvenile court issued
a dispositional decision ordering K.S. be placed in the
temporary custody of the Agency.
{¶
5} A guardian ad litem ("GAL") was
appointed for K.S. and a case plan was established for
Mother. The case plan required Mother to cooperate and make
herself available to the Agency, to submit to random drug
screens, complete a mental health assessment and follow all
recommendations, complete a drug and alcohol assessment and
follow all recommendations, refrain from criminal activity,
comply with the terms of her probation, complete parenting
classes, and maintain a source of income so as to provide
K.S. with food, housing, and other basic needs. Mother and
K.S. were briefly placed in an independent living facility
together. K.S. was subsequently removed and placed in a
foster-to-adopt home, and Mother was granted weekly
visitation with the child.
{¶
6} On October 24, 2018, the Agency filed a motion
for permanent custody of K.S., contending that Mother and
Father had not made sufficient case plan progress, that K.S.
could not be placed with either of his parents within a
reasonable time or should not be placed with his parents, and
that vesting permanent custody to WCCS was in K.S.'s best
interest. A hearing on the Agency's motion was scheduled
for January 7, 2019. Prior to the hearing, the GAL filed a
report recommending that permanent custody be granted to the
Agency.
{¶
7} On January 7, 2019, the day of the permanent
custody hearing, Paternal Grandfather filed a motion for
legal custody of K.S and a statement of understanding, as
required by R.C. 2151.353(A)(3). Paternal Grandfather was
represented by the same counsel who represented Father.
Counsel requested a continuance of the permanent custody
hearing on the basis of Paternal Grandfather's motion for
legal custody. Counsel acknowledged the "final
hour" filing of the motion and indicated it was filed so
late because Father and Paternal Grandfather had believed
Mother was going to be able to resume her custodial
obligations. According to counsel, "as soon as [Father]
* * * became aware that [M]other was not likely to * * * be
able to resume her responsibilities in a timely manner,
[P]aternal [G]randfather then agreed to file a motion, and *
* * wished to assume responsibilities as custodian."
{¶
8} The juvenile court indicated it was treating
Paternal Grandfather's motion as a request to intervene
in the case, as well as a request for legal custody of K.S.
The court called Paternal Grandfather to the stand and
questioned him about his relationships with K.S., Mother, and
Father. Paternal Grandfather advised the court that Father
had been arrested and incarcerated in federal prison as a
result of his relationship with Mother. Although Paternal
Grandfather believed he was not permitted to have contact
with Mother or K.S. as a result of Father's criminal
case, he nonetheless communicated with Mother. However,
Paternal Grandfather had never met or spoken with K.S.
Paternal Grandfather had traveled from his home in Wisconsin
to Ohio around the time of K.S.'s first birthday to try
to see the child, but Paternal Grandfather's efforts were
ultimately unsuccessful.
{¶
9} Paternal Grandfather first claimed that he did
not know the Agency had removed K.S. from Mother's care
until "six or nine months ago," around April or
July of 2018. However, Paternal Grandfather later admitted
that he knew about the Agency's involvement "back in
October of 2017" because Mother had contacted him and
informed him that K.S. was in foster care. Paternal
Grandfather testified he did not initially seek to get
involved in the case because he thought Mother "was
doing what she was supposed to be doing, and she was supposed
to be getting [K.S.] back." However, after he spoke with
Mother "probably * * * three months ago," or around
October 2018, and learned that Mother had been arrested and
was in jail, Paternal Grandfather decided to file his motion
for legal custody.
{¶
10} The Agency opposed Paternal Grandfather's
motion to intervene and motion for legal custody. The Agency
noted that although Paternal Grandfather had been aware of
the Agency's custody of K. S. for well over a year,
Paternal Grandfather had not contacted WCCS to request that
he be considered for placement of the child, nor had he
attempted to set up visitation or contact with K. S. The
juvenile court orally denied Paternal Grandfather's
request to intervene and motion for legal custody. The court
then heard testimony relating to the Agency's motion for
permanent custody from K.S.'s caseworker, Mother, Father,
and Paternal Grandfather.[1]
{¶
11} K.S.'s caseworker explained that the Agency
had been involved with Mother's family since 2014 as a
result of drug use by Mother and Mother's father. When
K.S. was born in November 2015, Mother was living with her
father and was on probation with the juvenile court as a
result of drug-related activities. Mother tested positive for
marijuana, benzodiazepines, MDMA, and cocaine when tested by
probation. She was given an additional drug test by the
Agency and tested positive for marijuana and Xanax. As a
result, on October 25, 2017, K.S. was removed from
Mother's care and placed in the Agency's custody.
{¶
12} The caseworker explained that because Mother was
also a minor, she was also removed from her father's care
and placed in the Agency's custody. K.S. and Mother
briefly lived together in an independent living facility.
However, after the Agency realized K.S. needed a higher level
of supervision, K.S. was placed in a foster-to-adopt home.
According to the caseworker, K.S. has been in the same foster
home for over a year and he has made "tremendous
progress" in his foster home. The caseworker testified
that when K.S. was originally removed from Mother's care,
K.S. was developmentally behind, did not make eye contact
with anyone, did not respond to anyone, and was
noncommunicative. K.S. underwent physical, occupational, and
speech therapy and received services from Head Start and Help
Me Grow. K.S. progressed and can now carry on conversations,
say full sentences, and knows people's names and his
colors. ...