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In re M.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

IN RE M.S. A Minor Child [Appeal by Mother]

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-17909379


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

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Michael F. Kulcsar, Assistant Prosecuting Attorney, for appellee Cuyahoga County Division of Children and Family Services.



         {¶ 1} Appellant-mother L.H. ("Mother") appeals the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division (the "juvenile court") granting legal custody of her son, M.S., to his father. For the reasons that follow, we affirm the juvenile court's decision.

         Factual Background and Procedural History

         {¶ 2} On June 15, 2017, appellee Cuyahoga County Division of Children and Family Services ("CCDCFS" or "the agency") filed a complaint, alleging that M.S. (born February 24, 2007) and his half-brother J.H. (born June 18, 2009)[1] were neglected and dependent and requested that M.S. be placed in the temporary custody of his father, appellee W.S. ("Father"), and that J.H. be placed in the temporary custody of his father, B.M. Specifically, the complaint alleged that (1) Mother had failed to enroll the children in school for the 2016-2017 school year, (2) the children had not attended school since April or May 2016, (3) Mother was living in a homeless shelter and did not have safe and stable independent housing and (4) Mother had a substance abuse problem, specifically PCP and marijuana, and had been diagnosed with bipolar disorder and depression, which prevented her from providing adequate care for the children. On July 5, 2017, M.S. was committed to the predispositional temporary custody of Father, and J.H. was committed to the predispositional temporary custody of B.M.

         {¶ 3} On August 15, 2017, Mother stipulated to the allegations of an amended complaint[2] and the juvenile court thereafter adjudicated M.S. to be neglected and dependent. At the dispositional hearing, Mother and Father stipulated to a disposition of temporary custody to Father and the juvenile court granted temporary custody of M.S. to Father.

         {¶ 4} CCDCFS filed a case plan that required Mother to (1) participate in a domestic violence program or counseling to address anger management and other issues associated with being a victim of domestic violence, (2) participate in mental health services, (3) obtain and maintain safe, stable and appropriate housing, (4) ensure that her children have all of their basic needs met, including food, clothing, shelter, medical care and education and (5) comply with any drug treatment recommendations, maintain a drug-free lifestyle and submit to random drug screens. The permanency goal was reunification of the children with Mother. The juvenile court approved the case plan.

         {¶ 5} On October 23, 2018, the guardian ad litem ("GAL") submitted a report and recommendation. With respect to Mother, the GAL reported that Mother had secured a two-bedroom apartment, that Mother was receiving mental health services and taking medication for bipolar disorder, PTSD and depression and that Mother was participating in a work program and working to get her SSI benefits reinstated. The GAL further reported that Mother had completed parenting and anger management classes. The GAL stated that Mother had regular visitation with M.S. every other weekend and wanted M.S. returned to her care and custody but that "Mother's ability to maintain her mental health and sobriety while parenting two active boys is unknown at this time."

         {¶ 6} With respect to Father, the GAL reported that Father lived in an apartment with his mother and M.S. and that he had a job opportunity in Atlanta, Georgia but had postponed moving to Atlanta until he was granted full custody of M.S. The GAL stated that M.S. had been "doing well" while in Father's care, had benefited from the "structure and consistency" of Father's home and that his grades had improved with improved school attendance. The GAL indicated that M.S. had "mixed feelings" about remaining with Father and moving to Atlanta because he loves both his parents and wants to spend time with both parents and J.H. The GAL recommended that legal custody be granted to Father and that Mother be granted an out-of-state parenting schedule once Father moved to Atlanta.

         {¶ 7} On October 30, 2018, CCDCFS filed a motion to terminate temporary custody and grant legal custody to Mother with protective supervision. The agency asserted that it was in the best interest of M.S. to be returned to Mother's care and custody because she had "substantially complied with the case plan and ha[d] reduced the risk that initially caused the children to be removed." Specifically, the agency noted, Mother had completed a substance abuse assessment, was engaged in mental health counseling and had secured and maintained appropriate housing. The agency maintained that protective supervision was warranted because all of Mother's case plan objectives had not yet been completed.

         {¶ 8} On November 30, 2018, Father filed a motion for legal custody of M.S. Father argued that it would be in M.S.'s best interest for him to be granted legal custody of M.S. because (1) M.S. had been living with Father "without any problems" for over a year, (2) Father had been "consistently meeting M.S.'s basic needs and providing him with a nurturing home" without the need for any ongoing services or supervision, (3) M.S. had "settled comfortably into Father's family," bonding with his other half-siblings and excelling in school and (4) protective supervision would be necessary to ensure M.S.'s safety and well-being in Mother's care.

         {¶ 9} On December 18, 2018 and January 22, 2019, Mother tested positive for PCP. Mother denied using PCP. According to CCDCFS, Mother attributed the positive drug screens to her "mistaken" use of old cigarettes laced with PCP.

         {¶ 10} In February 2019, the magistrate appointed counsel for M.S. due to a conflict between M.S.'s wishes and the recommendation of the GAL. Based on "new concerns * * * regarding Mother's ability to maintain her sobriety," CCDCFS filed (1) a motion to withdraw its prior motion to terminate temporary custody and award legal custody with protective supervision to Mother and (2) a motion to modify temporary custody to legal custody to Father.

         {¶ 11} On February 19, 2019, the GAL submitted an updated report and recommendation in which the GAL again recommended that legal custody of M.S. be granted to Father. The GAL reported that Mother continued to reside in the same two-bedroom apartment and to engage in mental health services but that she had "relapsed into substance abuse in December 2018, when she tested positive" and "needs to reengage in substance abuse treatment and demonstrate that she can maintain her sobriety." The GAL indicated that "Mother's substance abuse issues are a long standing challenge that really requires [M]other to make and maintain lifestyle changes" and that "Mother's relapse into substance abuse leads this GAL to have serious concerns about her ability to regain her sobriety and maintain it long term."

         {¶ 12} With respect to Father, the GAL reported that Father continued to provide appropriate care for M.S., ensuring that he receives a "solid education" and that CCDCFS had investigated an allegation related to marijuana use by Father's older children. The GAL stated that M.S. was "very clear" that he loves both of his parents but that he would prefer to live with Mother and visit Father. The GAL stated that this was "partly due" to Father's plan to move to Atlanta after the custody issue was resolved, which "complicates things even further."

         {¶ 13} On March 4, 2019, the magistrate held a hearing on the pending motions. M.S. was then 12 years old. Rhonda Parmer, one of the CCDCFS social workers who handled M.S.'s case, testified at the hearing.

         {¶ 14} Parmer testified that, prior to CCDCFS's involvement, Mother was the primary caregiver of M.S. She indicated that the agency became involved when Mother was in a shelter, had a "mental health breakdown" and was taken to a hospital where she tested positive for PCP.

         {¶ 15} Parmer stated that when she was assigned to the case in December 2017, a case plan was in place, with the goal of reunifying M.S. and J.H. with Mother. The plan required Mother to secure and maintain appropriate housing, take domestic violence classes and participate in mental health and substance abuse services. Parmer testified that Mother completed a drug and alcohol assessment in January 2018, that there were no recommendations for drug treatment at that time and that a random drug screen to which Mother submitted in April 2018 was negative. Parmer stated that by June 2018, Mother had obtained appropriate housing, had completed domestic violence classes and had consistently complied with the mental health aspects of her case plan, including engaging in recommended behavioral therapy and taking prescribed medications. Parmer indicated that Mother appeared to benefit from the services she had received and that Mother had also voluntarily taken parenting classes, which had not been required as part of her case plan.

         {¶ 16} Parmer testified that in June 2018, based on Mother's progress with her case plan objectives, she recommended that Mother be granted legal custody of M.S. That changed, however, after ...

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