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In re L.K.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

IN RE L.K. A Minor Child [Appeal by T.C., Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD17916510

          James A. Anzelmo, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Rachel Matgouranis, Assistant Prosecuting Attorney, for appellee.



         {¶ 1} Appellant, T.C. ("mother"), appeals the juvenile court's order granting the Cuyahoga County Department of Children and Family Services ("CCDCFS") permanent custody of her minor child, L.K. (d.o.b. 10/19/2017). She raises one assignment of error for our review:

         Children services failed to establish, by clear and convincing evidence, that it should be given permanent custody of T.C.'s child.

         {¶ 2} Finding no merit to her assignment of error, we affirm. I. Procedural History and Factual Background

         {¶ 3} On October 31, 2017, CCDCFS filed a complaint alleging that L.K. was abused and neglected and requesting temporary custody of L.K. based upon his parents' substance-abuse problems. The complaint stated that at L.K.'s birth, mother and L.K. tested positive for cocaine. CCDCFS alleged that mother had a substance-abuse problem with cocaine and heroin, failed to maintain sobriety, and was currently on probation for theft and unauthorized use of property. The complaint also stated that L.K's father, W.K ("father"), "has a substance abuse problem, specifically heroin," "has not participated in treatment and has failed to maintain his sobriety[, ]" and has "a pending charge" for drug abuse and obstructing official business in Rocky River Municipal Court.

         {¶ 4} In addition to its complaint, CCDCFS also moved for emergency pre-dispositional temporary custody, which the magistrate granted after a hearing.

         {¶ 5} In November 2017, the trial court appointed Patricia Lanzy as L.K's guardian ad litem ("GAL").

         {¶ 6} On January 2, 2018, the GAL submitted her report, which stated:

Child is doing well [with paternal grandmother]. * * * Both mother and father are residing with maternal aunt. Both parents are on probation for separate theft charges. Mother was in a substance abuse program through [Community Assessment and Treatment Services ("CATS") Program] but she has relapsed. The parents were court ordered to submit to drug testing by urinalysis on November 20, 2017. Mother complied with the court order. The tests [sic] results stated mother tested positive for cocaine and fentanyl urine. * * *
I have been unsuccessful in my attempts to contact the parents. Mother's phone number is not working[.] * * *
The case plan has referred the parents to the Lakewood Collab to help them obtain stable housing.

         The GAL recommended that it was in L.K.'s best interests to grant CCDCFS temporary custody.

         {¶ 7} On January 19, 2018, the magistrate adjudicated L.K. as abused and neglected, and the trial court adopted the magistrate's decision.

         {¶ 8} On January 26, 2018, the magistrate awarded temporary custody of L.K. to CCDCFS. The trial court subsequently approved and adopted the magistrate's decision.

         {¶ 9} On April 10, 2018, CCDCFS moved to amend mother's case plan, which was approved by the magistrate on April 24, 2018. The case plan stated that mother needed to complete a drug and alcohol assessment to determine treatment needs, follow the recommendations made by the drug assessor, and submit to random drug screenings as requested. The plan noted that mother reported "feelings of depression" and stated that mother had to complete a mental health assessment and follow the service provider's recommendations. Finally, the plan stated that mother needed stable housing and would have to follow the recommendations "made by the neighborhood collaborative in order to secure housing."

         {¶ 10} On May 24, 2018, CCDCFS filed its semi-annual administrative review ("SAR"), which indicated that "Mother has been in jail for the past month. She was offered a drug treatment/diversion program. However, she refused. She is due to be released on 5/28/18. She reports that she is not [going] for treatment. She was arrested for felony possession of fentanyl." It stated that mother was "not active" in a mental health program and did not have stable housing because mother's aunt kicked her out. The review further said that L.K. had a strong bond with paternal grandmother, mother refused to participate in services, mother "has not expressed a true interest in visiting [L.K.]," and mother did not ask about L.K. during phone calls with CCDCFS.

         {¶ 11} On October 1, 2018, CCDCFS moved to modify temporary custody to permanent custody.

         {¶ 12} On January 2, 2019, L.K's GAL submitted her report and recommendation, which stated:

I have not been successful in communicating with the parents. I have called the various phone numbers that have been given to me by the case worker and paternal grandmother. I have written and mailed letters to various addresses. The parents have not responded. According to the [SAR], the parents are homeless. They stay in motels and with friends. * * * Case worker asked mother to submit a urine screen and hair sample on October 1, 2018. Mother failed to comply. Mother and father have made insufficient progress towards completing case plan services. * * *
Both mother and father have made little progress in maintaining sobriety. The parents do not visit the child on a consistent basis. They have not obtained stable housing.

         The report noted that paternal grandmother has a strong bond with L.K. and is willing and able to adopt L.K. and provide for his care. It stated that it was in L.K.'s best interests for the trial court to grant CCDCFS permanent custody.

         {¶ 13} On April 11, 2019, the magistrate held a hearing on CCDCFS's motion, during which mother, her counsel, father, his counsel, and L.K.'s GAL were present. At the hearing, father stipulated to the allegations contained in CCDCFS's motion to modify temporary custody to permanent custody and to granting CCDCFS permanent custody, and the trial court accepted his stipulation. Mother, through counsel, orally opposed CCDCFS's motion to modify and also moved to extend temporary custody.

         {¶ 14} The following evidence was then presented at the hearing with respect to mother.

         {¶ 15} Paternal grandmother testified that at the time of the hearing, L.K. was approximately one and a half years old and had lived with her since he was released from the hospital on October 23, 2017. She said L.K. was doing "amazing," "thriving," and was "where he should be." She said she and L.K. had a very close bond as did L.K. and paternal grandmother's boyfriend, who lived with them.

         {¶ 16} Paternal grandmother testified that L.K. was diagnosed with asthma and that she was ensuring that all of L.K's medical issues were being addressed.

         {¶ 17} Paternal grandmother said that visits with L.K's parents used to take place at mother's aunt's house. On November 23, 2017, however, an "incident" occurred at the aunt's house, and CCDCFS stopped the visits from occurring there. Subsequent to that, CCDCFS moved the visits to paternal grandmother's home. However, during a visit on January 28, 2018, mother went into the bathroom and did not come back to the living room for "quite some time." Paternal grandmother stated that when father went to check on mother, he found mother unresponsive and cyanotic[1] Paternal grandmother performed rescue breathing on mother until paramedics arrived and took her to the hospital. Paternal grandmother stated that at the hospital, mother spoke with a narcotics detective, who asked mother if she would be agreeable to going to a treatment center. Paternal grandmother said that although mother agreed, mother left the hospital prior to being placed somewhere.

         {¶ 18} Paternal grandmother testified that after those incidents, however, "there was a long period of time where there [were] no visits" because "mother didn't contact the caseworker to set them up." Paternal grandmother also stated that mother was arrested and in jail from February 2018 until May 31, 2018. She said there were not any visits between mother and L.K. from January 2018 until June 13, 2018, and after mother's visit with L.K. in June 2018, mother did not see L.K. again until January 2019.

         {¶ 19} Paternal grandmother said since the beginning of January 2019, mother has been more consistent with her visits at paternal grandmother's house and at the Lakewood Collaborative, ...

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