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In re K.S.

Court of Appeals of Ohio, Twelfth District, Warren

June 17, 2019



          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


          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. ...

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