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In re V. H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

IN RE V.H., ET AL. Minor Children [Appeal by A.H., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD18905130, AD18905131, AD18905132, and AD18905133


          Nee Law Firm, L.L.C., and Leigh S. Prugh, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michelle A. Myers, Assistant Prosecuting Attorney, for appellee C.C.D.C.F.S.

          Mark A Stanton, Cuyahoga County Public Defender, and Britta A. Barthol, Assistant Public Defender, for appellee B.M.



         {¶ 1} Appellant A.H. (Mother) appeals a decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, that adjudicated child V.H. was abused and children R.S., M.S., and T.M. were neglected. For the reasons that follow, we reverse and remand the case to the trial court for further proceedings consistent with this opinion.

         Statement of the Facts

         {¶ 2} Appellant A.H. ("Mother") and T.H. ("Father") are married and are the parents of V.H. who was six months old at the time of the emergency custody hearing. Mother also has three children from prior relationships, R.S., M.S., and T.M., aged eight, six, and three respectively. R.S. and M.S. are the children of Mother and Ro.S., and T.M. is the child of Mother and B.M. At all relevant times, Mother had custody of R.S., M.S., and T.M.

         {¶ 3} On April 17, 2018, Mother left V.H. and T.M. at home with Father while Mother took RS. to a doctor's appointment. M.S. was at school. Conflicting evidence was introduced whether Father worked the night shift the day before. When Mother left the house, Father was awake, six-month-old V.H. was sleeping in the parents' bed, and three-year-old T.M. was asleep in his bedroom situated across the hall. Father was tired and since both children were asleep, he returned to sleep in the bed with V.H.

         {¶ 4} Father awoke to crying from V.H. and T.M. Father found the children on the floor at the foot of his bed, with T.M. holding V.H. It was soon apparent that VH.'s arm was injured. V.H. was treated immediately at an emergency room for a fractured arm. While Mother, who was not home when the incident occurred, and Father did not know the exact cause of V.H.'s broken arm, they surmised T.M. attempted to pull her off the bed and V.H. fell to the ground, breaking her arm.

         {¶ 5} Although the hospital records were not included as part of the record, testimony referenced those medical documents. According to the testimony, the hospital records indicated that V.H.'s broken arm was consistent with a fall. There was also testimony from Chloe Scott, a child protection specialist with the Cuyahoga County Department of Child and Family Services ("CCDCFS"), that states V.H.'s injury was sustained as she was passed back and forth between her brothers, R.S., and T.M. However, the record indicates that R.S. was not home when V.H. was injured which disputes the testimony of Chloe Scott. At no other time is there mention of V.H.'s brothers passing her back and forth as an explanation offered for V.H.'s injury.

         {¶ 6} CCDCFS was informed of V.H.'s injury. Chloe Scott initiated an investigation and met with Mother and Father on April 17, 2018. Father initially refused Ms. Scott entry into the house until Mother arrived home; Father was not T.M.'s parent and felt Mother needed to be present for discussions regarding T.M.

         {¶ 7} Mother and Father were not receptive to CCDCFS's suggestion of placing V.H. in a location inaccessible to the three year old, T.M., or making alternate sleeping arrangements for V.H. The couple stated sleeping with an infant was not illegal and V.H. slept best in a shared bed with her parents. CCDCFS attempted to adopt a safety plan, but Mother and Father were unwilling to cooperate. The parents agreed Father should not watch the children after working a third shift, although this was not typically an issue since Mother was usually home during the day. Ms. Scott noted the house was cluttered and full of dog fur from the family's three dogs. V.H. slept in the parents' room while the three older children slept in the room across the hallway. The children's bedroom contained two beds for the three children.

         {¶ 8} Ms. Scott also discussed with Mother and Father an open investigation dating from March 2018. At that time, R.S., self-reported that he put a toy in V.H.'s crib causing her an injury and, as a result, Father disciplined him by "punching" R.S. in the back. CCDCFS reported to their home in March 2018, but was not permitted to speak independently to R.S. The parents denied such discipline occurred and the social worker did not observe any cuts or bruises on R.S. The social worker did not lift the child's shirt to examine his back. That complaint was left open within CCDCFS's system, but no further follow-up occurred.

         {¶ 9} Ms. Scott attempted to schedule a staffing meeting with Mother and Father regarding V.H. Mother and Father informed Ms. Scott they were not available the next morning, April 18, 2018, because of a previously scheduled doctor's appointment. Due to Father's aggressive behavior towards Ms. Scott, she found it necessary to leave the home without scheduling a subsequent meeting.

         {¶ 10} A staffing meeting was held by CCDCFS the morning of April 18, 2018. Ms. Scott left a voicemail message for Mother notifying her about the date and time of the staffing meeting, even though she had been told Mother and Father were unavailable at that time due to a previously scheduled doctor's appointment. Ms. Scott later realized that message was left at the wrong phone number and attempted to schedule another staffing meeting with Mother and Father. Mother and Father provided no amenable dates due to their busy schedules.

         {¶ 11} Ms. Scott felt the parents were not taking the situation seriously because they did not appear willing to change their sleeping patterns and she discontinued any attempt to schedule a second staffing meeting. Ms. Scott attempted to notify the parents about a scheduled emergency temporary custody hearing via telephone but Mother would not take the information and hung up on Ms. Scott. A coworker of Ms. Scott left a voicemail for Mother with information relevant to the emergency hearing. Mother returned the coworker's call, but Ms. Scott did not know the details of the conversation.

         {¶ 12} Mother and Father recalled a different version of the facts. Because of previously scheduled doctor's appointments for R.S. and V.H., Ms. Scott and the parents agreed to hold a staffing meeting on April 20, 2018, at 9:00 a.m. by phone. The parents received a call from Ms. Scott at 10:00 a.m. stating she had called the wrong phone number and the staffing meeting was held without the parents. A subsequent meeting was to be held, via phone, that afternoon, after V.H.'s 12:30 p.m. doctor's appointment. Mother and Father received two voicemail messages the afternoon of April 20, 2018, stating an emergency custody hearing was scheduled at 2:00 p.m. and the parents must be present.

         {¶ 13} An emergency temporary custody hearing on April 20, 2018, addressed CCDCFS's emergency complaint alleging V.H. was abused and neglected. CCDCFS sought temporary custody of V.H. Ms. Scott testified removal of V.H. was necessary to alleviate any risk to the child - the basis for removal was lack of parental supervision, the concern of V.H. sleeping with her parents, and the possibility that she may fall out of bed. The guardian ad litem also recommended removal based upon the family's uncooperative attitude; the different stories relayed as to how V.H. injured her arm; and the young age of V.H. The court determined CCDCFS made reasonable efforts to prevent removal, including safety planning, but more services were required to alleviate risks to V.H. A motion for predispositional temporary custody for V.H. was granted and a case plan was to be filed within thirty days. Mother and Father attempted to attend the emergency temporary custody hearing, but went to the wrong address. The couple arrived at the correct location after the hearing had concluded and were confronted by CCDCFS employees and police officers who immediately took custody of V.H.

         {¶ 14} A magistrate then held a predispositional temporary custody hearing on May 21, 2018, to determine whether the removal of R.S., M.S., and T.M. from Mother's home was in their best interest. Ro.S., the father of R.S. and M.S., and B.M., the father of T.M., were present at the hearing. Ro.S., B.M., and CCDCFS all stated it was not in the best interest of the children to remove them from Mother's custody.

         {¶ 15} Ms. Scott testified about the children. Ms. Scott determined R.S.'s school attendance was poor at the start of the year, but he was currently doing well. R.S. had an IEP for behavior, but no evidence was introduced regarding any problems. Ms. Scott had not spoken with the school regarding M.S. Some of Ms. Scott's statements were not well supported: "There [were] some concerns raised about the physical discipline. I'm not sure to what extent but there [were] some concerns in the way of her treatment of the children." Ms. Scott further stated the children's fathers and school staff reported concerns regarding Mother's physical discipline; her yelling and screaming at the children; and an incident where Mother allegedly "whipped" the children in a store. Testimony stated the three children were bonded with one another. Mother and Father's home was appropriate because the family was provided with heat, food, and electricity. Ro.S. had some concern regarding Mother's physical discipline but supported placement of his children with Mother and did not believe they were in immediate harm. Similarly, B.M. was concerned that Mother would yell and scream at T.M., but he did not believe his son was at immediate risk. Ro.S. and B.M.'s homes had not been investigated by CCDCFS, nor were the fathers included in the April 18, 2018 staffing meeting.

         {¶ 16} CCDCFS felt Mother lacked adequate parenting skills as demonstrated by her general lack of knowledge about the hazards of sleeping with an infant and leaving Father in charge of the children after he had worked a third shift. However, CCDCFS recommended it was in the best interests of R.S., M.S., and T.M. to remain with Mother because the disciplinary concerns could be addressed through agency-provided services; Mother and Father were willing to avoid Father caring for the children after working a third shift; the biological fathers of the three children were involved and had regular contact with their children; and R.S. and M.S. were in school providing them with regular contact with nonfamilial adults.

         {¶ 17} The agency had presented a case plan to Mother and Father approximately one week after CCDCFS took custody of V.H. The agency ordered both a drug screen and mental-health assessment because the parents were angry and the agency was concerned about their anger management. The parents seemed willing to comply with the parenting courses and mental-health and drug screenings, but wanted to confer with their attorney prior to committing to the case plan. CCDCFS found Mother and Father's response to the proposed case plan reasonable. However, at the close of the predispositional temporary custody hearing, counsel for Mother and Father indicated the parents were unwilling to attend parenting classes and felt no case plan was necessary.

         {¶ 18} The court determined that because the parents refused agency services, it could not say it was in the children's best interest to remain with the parents. The children were placed in the predispositional temporary custody of CCDCFS. R.S. and B.M. were to be considered first for placement of their children. The ...

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