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In re J.J.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

IN RE J.J. Minor Child Appeal by E.A., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Court Division Case No. AD18905474

          Kelly Zacharias, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Andrea J. Latessa and Cheryl Rice, Assistant Prosecuting Attorneys, for appellee.



         {¶ 1} Appellant mother E A. ("Mother") appeals from the judgment of the juvenile court awarding permanent custody of her minor son, J. J., to the Cuyahoga County Department of Children and Family Services ("CCDCFS" or "agency"). Upon a thorough review of the record, we find that the juvenile court properly engaged in the two-prong analysis prescribed by R.C. 2151.414 and clear and convincing evidence supports the court's decision granting permanent custody of the child to the agency. We therefore affirm.

         I. Procedural History and Substantive Facts

         {¶ 2} J.J. was born on April 25, 2018, and two days later, CCDCFS filed a complaint for dependency and permanent custody alleging Mother has mental health challenges, specifically depressive disorder, that prevent her from providing appropriate care for the child; she has five other children who were removed from her care and custody; she has a history of substance abuse issues that prevent her from providing appropriate care for the child; and Mother has continued to maintain a relationship with the child's father, Jo J. ("Father"), despite being the victim of domestic violence at his hands. The agency also filed a motion for pre-dispositional temporary custody of the child, which the trial court granted.

         {¶ 3} On September 6, 2018, the court held a hearing on adjudication, during which Mother stipulated to an amended complaint that included the following allegations: Mother has depressive disorder and was dismissed from treatment in November 2016 due to noncompliance; Mother has a history of substance abuse dependency and has not complied with the case plan requirement to submit to random drug tests; Mother has maintained a relationship with the child's father despite being the victim of domestic violence; and she has five other children who had been adjudicated dependent and were removed from her care.

         {¶ 4} During the adjudication hearing, the assigned social worker, Tracy Simpkins ("Simpkins"), testified that domestic violence has continued to be an issue for Mother. According to Simpkins, Mother had completed domestic violence class in the past but she has not benefitted because she immediately returned to a relationship with her abuser, J.J.'s father, as well as another individual who also engaged in domestic violence. Simpkins further testified that Mother was kicked out of a domestic violence shelter because she violated the rules of the shelter. Simpkins stated that Mother was therefore homeless, staying with a "sponsor" outside of the county. Finally, Simpkins noted that Mother had engaged in mental health services, but because she moved to Ravenna and gave up her CMHA housing, she must begin mental health services over again in Ravenna.

         {¶ 5} Regarding Father, Simpkins testified that he had been convicted of domestic violence against Mother and was incarcerated for 16 months of the imposed three-year sentence. Simpkins stated that "[w]hen [Father] got out in August 2017, Mother moved in a place in September and they [were] right back together."

         {¶ 6} On September 12, 2018, the court found that allegations of the amended complaint were proven by clear and convincing evidence and further found that the child lacked adequate parental care because of the mental health of the child's parents because "Mother is currently homeless and the parents are not engaged in services designed for reunification," the child's return to Mother will be contrary to the child's best interest, and suitable relatives cannot be located. The court also found that the agency had made reasonable efforts to prevent the continued removal of the child from the home.

         {¶ 7} The court ordered Mother to submit to a chemical abuse assessment; to treatment, if recommended; and if treatment is recommended, to alcohol and/or drug testing before, during, and after chemical abuse treatment. The court then adjudicated the child dependent.

         {¶ 8} On April 4, 2019, the court held a dispositional hearing, during which the court heard testimony from the social worker in this case.

         II. Dispositional Hearing

         {¶ 9} The ongoing social worker, Simpkins, testified on behalf of the agency. Mother's history with the agency began in 2013, and Simpkins received the case "three years ago." J.J. was removed from Mother's care and custody directly from the hospital in April 2018, when J.J. was two days old. At the time of the dispositional hearing, J.J. was 11 months old.

         {¶ 10} The record shows that Mother has five other children, all of whom have been removed from Mother's care and custody and are in the permanent custody of the agency. J.J.'s father, Jo.J., is also the father of one of the other children in the agency's custody. The agency's concerns with Mother beginning in 2013 were substance abuse, mental health, housing, and domestic violence. At that time, the agency also had concerns regarding Father's paternity, housing, domestic violence, and interrelationship with his child. To address those concerns, the agency developed a case plan. Both parents failed to comply with the case plan.

         {¶ 11} Simpkins stated that the agency's initial concerns with Mother regarding mental health issues, substance abuse, housing, and domestic violence, and the agency's concerns with Father regarding domestic violence, housing, and interrelationship with the child, have continued to date. Regarding the current case, the agency developed a case plan for both Mother and Father. According to Simpkins, she reviewed the case plan with the parents and neither parent expressed objections to the case plan. Mother in fact signed the case plan. Father did not sign the case plan "because he never made himself available; [rather h]e would just call and cuss me out."

         {¶ 12} Simpkins testified that Mother completed a domestic violence class. She failed to benefit from the services, however, because she continued a relationship with J.J.'s father, who had been convicted of domestic violence against her.

         {¶ 13} Simpkins testified that Mother did not have housing at the beginning of JJ.'s case, but she later obtained housing through CMHA. Mother left her CMHA housing, however, to return to Father. At the time of the hearing, Mother had no stable housing and relied on friends and her advocate for a place to stay. When Simpkins requested to visit Mother at her friends' place, Mother informed her that these friends also had an open case with the agency and did not want Simpkins coming to their home.

         {¶ 14} Regarding her employment, the social worker testified that Mother reported that she is working "under the table." Simpkins, however, has not been able to verify this employment.

         {¶ 15} Additionally, Mother failed to complete mental health and substance abuse services. According to Simpkins, Mother went to The Centers for mental health services "one or two times." She also went to Catholic Charities for substance abuse services only "one or two times." Simpkins stated that Mother went to St. Coleman's as well. This program provided dual-diagnostic assessment. Mother completed the assessment, and St. Coleman's recommended both mental health and substance abuse services. Mother failed to engage in the recommended services, however, meeting only with the case manager on three occasions. And Mother repeatedly refused to submit to drug tests. When she finally agreed in February 2019, Mother tested positive for cocaine. According to Simpkins, Mother admitted to having relapsed.

         {¶ 16} Simpkins testified concerning Mother's visitation with J.J., stating that Mother visits regularly and she "loves her baby." Simpkins also stated that Mother is good with J.J. during the visits, explaining that Mother plays with him, talks to him, and hugs and kisses him.

         {¶ 17} Regarding Father, Simpkins testified that Father failed to make himself available for case plan services, and he repeatedly failed to attend court hearings. When Father interacted with Simpkins, he "would cuss [her] out," argue with her, and threatened to kill her. At this point, visitation with the baby and Mother was moved to a different location because the agency was concerned for the safety of the social worker and the transporter, who was afraid to transport the baby for fear of Father showing up. Simpkins further stated that Mother's visitations became supervised because of Father's demonstrated aggression toward the social worker, explaining that at the first visitation without the social worker, the baby's transporter was afraid to remove the baby from the vehicle because she heard Mother talking to Father.

         {¶ 18} Simpkins added to Father's case plan that he build a relationship with J.J. because he was "slow to visit the baby." On most occasions when Simpkins called Father for visitation, he would "cuss [her] out" and threaten her. On one occasion, Father agreed to visit, but he was a "no-show." Father has failed to visit J.J. in the 11 months since J.J. was placed in the agency's custody.

         {¶ 19} Simpkins stated that Father once faxed her a purported paycheck stub, but she was unable to confirm his employment because the document lacked an identifiable employer or contact number. The document contained only "numbers, letters" and did not include a letterhead. Father also sent a purported certificate from a fatherhood class. Once again, however, Simpkins was unable to confirm Father's attendance because the documents lacked an entity name, phone number, and contact information. At the time of the dispositional hearing, Father was living at a men's shelter.

         {¶ 20} Simpkins testified that the agency investigated relatives for possible placement of J.J. but found no willing and able family members. Mother's mother is older and working with her husband as a truck driver, so she is not able to care for the child. Mother's sister never returned the social worker's phone call. And Father's mother "wasn't going to be bothered."

         {¶ 21} Simpkins testified that J.J. is a healthy, happy baby. He presently lives with his foster parents with whom he was originally placed at birth. Simpkins has observed the child in his current placement ...

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