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In re A.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

IN RE A.C. A Minor Child [Appeal by A.C., Father]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD18900944

          Wargo Law, L.L.C., and Leslie E. Wargo, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery and Cheryl Rice, Assistant Prosecuting Attorneys, for appellee.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶1} Appellant, AC. ("Father"), appeals an order of the Juvenile Division of the Cuyahoga County Court of Common Pleas (the "juvenile court") granting legal custody of his daughter ("AC") to her maternal great-uncle ("Uncle"). Father claims the following three errors:

         1.The trial court erred by denying the Father's motion for continuance because the Father had a medical issue, thus, precluding him from testifying at the hearing.

2. The trial court erred by denying the Father's motion for first extension of temporary custody.
3.The trial court erred by denying the Father's request for a new social worker.
4. Because the trial court did not continue the hearing after Father became ill and did not grant the Father's motion for a first extension of temporary custody, it did not have all the competent and credible evidence before it to render a decision to grant permanent custody to the uncle.

         {¶2} We find no merit to the appeal and affirm the trial court's judgment.

         I. Facts and Procedural History

         {¶3} In January 2018, the Cuyahoga County Department of Child and Family Services ("CCDCFS" or "the agency") filed a complaint alleging that A.C. was a neglected and dependent child due to her parents' failure to care for her special medical needs. A.C. was born prematurely and remained hospitalized for four months after birth due to a heart condition and problems with her immune system. The complaint for temporary custody further alleged that (1) A.C.'s mother ("Mother") and Father were unwilling to follow medical advice; (2) Mother had untreated mental health and substance abuse issues; and (3) A.C.'s older brother, K.J., was already in the emergency custody of CCDCFS due to Mother's failure to provide for his medical needs. The agency also filed two motions for emergency predispositional temporary custody. Following a hearing in February 2018, the court granted emergency custody of AC. to CCDCFS, and A.C. was placed in the care of Uncle. Thereafter, in March 2018, Father filed a motion requesting that legal custody be granted to himself with an order of protective supervision. A magistrate denied the motion. Father objected to the magistrate's decision, and the trial court overruled the objections.

         {¶4} In July 2018, CCDCFS filed a motion to modify custody and asked the court to grant legal custody of A.C. to Uncle. Prior to a hearing on the motion, Father filed a motion for extension of temporary custody and for removal of the assigned social worker.

         {¶5} On October 25, 2018, the court held a hearing on the parties' competing motions, beginning with Father's request for the removal of the assigned case worker. Father alleged that extended family members of the assigned case worker, Rosalind Bailey ("Bailey"), were close friends with members of Mother's family, including Uncle. He claimed that "Bailey's cousin Ryan and [Uncle] are very good friends." (Father's motion for first extension of temporary custody and request for a new social worker p. 2.) He further alleged that "Ms. Bailey knows his wife's mother and grandmother and was consequently aware of his wife being on the outs with her family over money," and that he and Mother know Bailey's grandmother and have been in her home. (Father's motion for first extension of temporary custody and request for a new social worker p. 2.)

         {¶6} Father alleged at the hearing that his stepchild played at Bailey's grandmother's home and that Bailey's grandmother lives down the street from Uncle. (Tr. 6.) Father also alleged that Mother's mother has been friends with Bailey's grandmother "for years" and that they live in close proximity to each other. (Tr. 6.) Bailey denied these allegations and denied that any of her relatives live anywhere near Uncle. (Tr. 6.) Indeed, Bailey testified that both of her grandmothers are deceased; one grandmother died before Bailey was born and her other grandmother passed away in 2014, long before A.C. was born. (Tr. 16.) Bailey also stated that she does not know any of the individuals named in Father's motion. (Tr. 16.) According to Bailey, Father wanted her removed from the case because he did not like the information she relayed to him from A.C.'s medical providers. She explained:

So I guess with that information, he didn't want me to be on the case because he didn't like the information that I spoke to him that was given to me from the service providers.

(Tr. 10.)

         {¶7} Father's lawyer nevertheless argued that Father does not trust Bailey and believes "she has spoken falsely about facts in the case" and, therefore, Father did not feel he could work with her. Counsel argued that Father loves A.C. and "could have done much better if he had a different social worker who [sic] he could trust." (Tr. 19.) Father admitted that he did not work his case plan the way he should have, but asserted his failure to do so was because he did not get along with Bailey. (Tr. 19.) He asked the court to extend temporary custody in order to allow him the opportunity to work on his case plan with a different case worker.

         {¶ 8} The magistrate denied Father's motion to remove A.C.'s case worker. Based on the parties' arguments and Bailey's testimony, the magistrate found no genuine conflict between Bailey and Father. (Tr. 23.) The court, therefore, proceeded to a hearing on CCDCFS's motion to modify the temporary custody of A.C. and award legal custody of A.C. to Uncle.

         {¶9} Bailey testified that A.C.'s older brother, K.J., was already in the legal custody of Uncle. Therefore, if the court were to grant legal custody of A.C. to Uncle, the siblings would be together. (Tr. 25.) Mother's case plan required her to complete parenting and domestic violence classes, undergo mental health treatment, and demonstrate that she can provide for A.C.'s basic needs. (Tr. 27.) According to Bailey, Mother made no attempt to complete any of these objectives. (Tr. 27.)

         {¶ 10} Father's case plan also required him to complete parenting and domestic violence classes, have regular visits with A.C, and complete a psychological assessment through the court psychiatric clinic. Father was given an appointment for the psychological assessment, but he rescheduled it three times and failed to show up for the third appointment. (Tr. 29-30.) The court clinic closed his case pursuant to a policy that limits appointments to no more than three rescheduled appointments, and Father never completed the assessment. (Tr. 29.)

         {¶11} Bailey testified that the psychological assessment was necessary because (1) the agency received reports that Father used excessive discipline with K.J., who was 11 years old, (2) Father refused necessary medical care for A.C, and (3) Mother and Father failed to obtain proper medical care for K.J., while K.J., who is AC's half-brother, was still in Mother's custody. (Tr. 30.)

         {¶12} The domestic violence assessment was a necessary component of Father's case plan because Father used excessive discipline on K.J., and the court had issued a no-contact order prohibiting Father from having contact with K.J. (Tr. 32.) There were also concerns that Father was negatively influencing Mother's decisions regarding A.C.'s care. (Tr. 32.)

         {¶13} Father was given a copy of his case plan as well as referrals for domestic violence and parenting classes at several agencies, including West Side Community House, Fatherhood Initiative, Cleveland Heights Collaborative, and others. Father was assigned to a case manager at West Side Community House, who informed Bailey that Father did not want to interact with him. (Tr. 33.) The agency had referred Father for services at Family Solutions before Bailey was assigned to the case, and Father also refused those services. (Tr. 34.)

         {¶14} Visitation with A.C. started in February 2018. Bailey testified that Father came to one visit in March, one doctor's appointment in April, and two visits in May 2018. Father had no visits with A.C. between May 2018 and October 25, 2018, the day of the hearing on CCDCFS's motion for legal custody to Uncle. West Side Community ...


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