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In re L.S.

Court of Appeals of Ohio, Twelfth District, Brown

August 5, 2019

IN RE: L.S., et al.

          APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 20163007

          Dever Law Firm, Scott A. Hoberg, for appellant,

          Mother Denise S. Barone, for appellant,

          Father Zachary A. Corbin, Brown County Prosecuting Attorney, W. Scott Wilson, for appellee.

          Christine D. Tailer, guardian ad litem.

          OPINION

          S. POWELL, J.

         {¶ 1} Appellants, the mother and father of L.S. and J.S. (respectively, "Mother" and "Father"), appeal the decision of the Brown County Court of Common Pleas, Juvenile Division, granting permanent custody of their two children to appellee, Brown County Children Services ("BCCS"). For the reasons outlined below, we affirm.

         Facts and Procedural History

         {¶ 2} On February 5, 2016, BCCS filed a complaint requesting protective supervision of J.S. J.S., who was born on January 1, 2010, was five years old at the time the complaint was filed. In support of its complaint, BCCS alleged J.S. was an abused, neglected, and dependent child. These allegations arose after BCCS received a report that Mother's behaviors were "all over the place" during a telephone interview regarding her eligibility for food stamps. A subsequent investigation revealed J.S. was often absent from school and in jeopardy of truancy charges being filed against Mother and Father. The investigation also revealed that J.S. had to "sneak food into her bedroom" and was oftentimes "hungry at home." The investigation further revealed that J.S. had reported seeing "people doing drugs and putting needles in their arms." These allegations ultimately resulted in both Mother and Father testing positive for benzodiazepine, barbiturates, methamphetamine, opiates, oxazepam, phenobarbital, and suboxone.

         {¶ 3} Upon receiving BCCS's complaint, the juvenile court granted interim temporary custody of J.S. to BCCS. The juvenile court also appointed J.S. with a guardian ad litem. Following her appointment, the guardian ad litem filed a report noting that she had gone to the family home and found it to be "littered with garbage and smelled of cat urine." The guardian ad litem also reported that Mother admitted to a long history of illegal drug and alcohol abuse by both herself and her family. Mother further admitted that her history of substance abuse and the pressure of BCCS's recent involvement in her and her children's lives was putting her in danger of relapsing. The guardian ad litem additionally noted that Mother had agreed that J.S. should be placed in the temporary custody of BCCS "as long as she would be able to have ample visitation with her child."

         {¶ 4} Upon receiving the guardian ad litem's report, the juvenile court granted both Mother and Father weekly supervised visitation time with J.S. Shortly thereafter, on March 15, 2016, the magistrate issued an order that found Mother's supervised visitation time had been revoked due to her again testing positive for opiates.[1] A case plan was then established that required both Mother and Father to complete a mental health evaluation, a drug and alcohol assessment, parenting and anger management classes, as well as comply with all scheduled and random drug screens. Mother and Father were also ordered to obtain both safe and stable housing, employment, and income to meet J.S.'s basic needs. Although likely unknowingly, the record indicates Mother was at that time approximately one month pregnant with LS.

         {¶ 5} On May 9, 2016, BCCS filed an amended complaint requesting it be granted temporary custody of J.S. rather than merely protective supervision Two days later, the magistrate held a review hearing on the matter. Neither Mother nor Father appeared at this hearing. However, while not appearing at this hearing, evidence was presented indicating that Father had been attending his supervised visitation time with J.S. Evidence was also presented that indicated Father had begun substance abuse treatment and anger management classes. But, as it relates to Mother, the record indicated Mother had not had any visitation time with J.S. for nearly six weeks. The record also indicated Mother had not yet begun any of the services set forth in her case plan. This includes both mental health and substance abuse treatment.

         {¶ 6} On July 8, 2016, the magistrate issued an order that instructed BCCS to file another amended complaint to accurately reflect J.S.'s name. The magistrate also ordered BCCS to modify Father's weekly supervised visitation time so that his visitation time with J.S. did not interfere with his case plan services. However, although his visitation time was later modified to better accommodate his schedule, Father's visitation time was nevertheless revoked after Father did not appear for three consecutive visits. As for Mother, the magistrate found Mother was then incarcerated in a local jail on charges alleging she had committed forgery and theft, both fifth-degree felonies. Mother was ultimately convicted of both charges and sentenced to 20 months in prison.

         {¶ 7} On August 29, 2016, the magistrate issued a dispositional decision granting temporary custody of J.S. to BCCS. The magistrate reached this decision upon finding J.S. was an abused, neglected, and dependent child. Approximately three months later, on November 23, 2016, Mother gave birth to L.S. while in prison.[2] That same day, BCCS filed a complaint requesting temporary custody of L.S. In support of its complaint, BCCS alleged L.S. was also an abused, neglected, and dependent child. BCCS supported these allegations by arguing Mother could not provide the necessary care for L.S. due to her current incarceration, whereas Father could not provide care for L.S. because his whereabouts were then unknown. Upon receiving BCCS's complaint, the juvenile court granted interim temporary custody of L.S. to BCCS. The juvenile court also appointed L.S. with a guardian ad litem.

         {¶ 8} On January 3, 2017, BCCS moved the juvenile court to grant legal custody of J.S. to her maternal aunt and uncle.[3] Prior to the filing of that motion, J.S. had been in her aunt and uncle's care for approximately three months and was, at that time, reportedly "doing well." BCCS supported its motion by noting that Mother was still incarcerated and that, even before being sent to prison, Mother had not engaged in any of the necessary case plan services set forth in her case plan. BCCS also noted that Father, who already had two of his other children removed from his care, was awaiting trial on a charge of misdemeanor assault.[4] BCCS further noted that Father had not "been cooperative with the agency." This included Father refusing to take at least one drug screen.

         {¶ 9} On January 17, 2017, the magistrate issued a dispositional decision granting temporary custody of L.S. to BCCS upon finding L.S. was also an abused, neglected, and dependent child. Approximately three months later, BCCS moved to withdraw its motion requesting legal custody of J.S. be awarded to aunt and uncle. The record indicates BCCS moved to withdraw its motion after it received reports that J.S. had lost 15 pounds in just a matter of weeks while under aunt and uncle's care. BCCS had also received reports that J.S. had suffered "emotional abuse and medical abuse" while living in aunt and uncle's home. This included an assessment that found J.S. suffered from "excessive brain washing." Upon receiving these reports, BCCS removed J.S. from her aunt and uncle's home and placed her in a foster home. There is no dispute that the foster home where J.S. was placed was the same foster home where L.S. was placed shortly after his birth.

         {¶ 10} On May 15, 2017, the magistrate held another review hearing. Following this hearing, the magistrate issued an order finding J.S. had been removed from her aunt and uncle's care after BCCS received reports that they were telling J.S. "horrible things about her parents." This included a finding that aunt and uncle had told J.S. "that her parents chose drugs over her." This, according to the magistrate, caused J.S. to suffer additional serious mental health issues. The magistrate also found J.S.'s aunt and uncle had placed J.S. on several drugs without BCCS's knowledge or consent; namely, concentra, ritalin, and clonidine. The magistrate further found that while Father had completed his substance abuse treatment, Father did not have any follow-up treatment, did not have a sponsor, and did not have a sobriety support system. The magistrate additionally found that Father did not have any employment, income, or independent housing.

         {¶ 11} On May 18, 2017, BCCS moved for permanent custody of both J.S. and L.S. In support of its motion, BCCS again noted that Mother had not completed any of the required case plan services prior to being sent to prison. On the other hand, as it relates to Father, BCCS noted that Father had completed drug treatment and anger management classes. Father, however, had not completed the required parenting classes nor had Father obtained safe and stable housing, employment, or income. BCCS further noted that J.S. had been in several placements following her removal from Mother and Father's care. This included J.S.'s placement with her aunt and uncle that resulted in "allegations of neglect that were ...


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