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In re G.El.S.

Court of Appeals of Ohio, Third District, Marion

December 30, 2019


          Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2016 AB 0009

          Todd A. Workman for Appellant

          Justin Kahle for Appellee


          WILLAMOWSKI, J.

         {¶1} Appellant Sarah Smith ("Sarah") brings this appeal from the judgment of the Court of Common Pleas of Marion County, Family Division terminating her parental rights and granting permanent custody to Appellee Marion County Children Services ("the Agency"). On appeal, Sarah claims that the trial court erred 1) in finding that the Agency made reasonable efforts to reunify the family; 2) in finding that the child could not be returned to the home in a timely manner; and 3) in finding that the termination of the parental rights was in the best interest of the child. For the reasons set forth below, the judgment is affirmed.

         Procedural Background

         {¶2} This case arises from a complaint filed on January 12, 2016, alleging that G.El.S. and his siblings in the home were dependent children as drug trafficking and drug use was allegedly occurring in the home.[1] Doc. 1. G.El.S. was listed as being born in May of 2006, to Sarah and Shane Smith ("Shane"), so was only 9 years old at the time of the complaint. Id. The complaint requested that protective supervision be granted to the Agency and that G.El.S. would remain in the home. Doc. 1 and 3. On February 10, 2016, the trial court appointed Mary Kay Crowder ("Crowder") as the guardian ad litem for G.El.S. Doc. 11. An adjudication hearing was held before a magistrate on March 11, 2016, at which the magistrate found G.El.S. to be a dependent child. Doc. 18. The trial court subsequently reviewed the evidence and adopted the decision of the magistrate. Doc. 19. The magistrate held a hearing of disposition on April 8, 2016, and ordered that G.El.S., would remain in the custody of his parents under the protective supervision of the Agency. Doc. 20. The trial court adopted this disposition on May 2, 2016. Doc. 21.

         {¶3} On September 9, 2016, the Agency filed a motion for an emergency removal of G.El.S. and three of his siblings[2] from the home. Doc. 25. The basis for the removal was the continued use of drugs by Sarah and Shane; alleged instances of domestic violence between Sarah and Shane; eviction from the family home; the children failing to attend school; and failure to follow the safety plan. Id. The trial court granted emergency custody to the Agency. Doc. 26. An amended case plan was submitted by the Agency on September 15, 2016. Doc. 28. Per the case plan, G.El.S. was placed in a certified foster home on September 9, 2016. Id. As part of the case plan, Sarah and Shane were required to complete assessments for addiction and mental health issues within 30 days, and follow the recommendations. Id. Sarah and Shane were also required to engage in services for domestic violence issues within 30 days. Id. Both were required to submit to random drug screens. Id. Although G.El.S. was originally placed with one of his older siblings, on October 13, 2017, temporary custody of G.El.S. was granted to a relative and the Agency provided protective supervision only. Doc. 31.

         {¶4} On January 30, 2017, the Agency filed a motion for an emergency order requesting temporary custody of G.El.S. Doc. 39. This motion was filed because it was determined that G.El.S. was in need of treatment placement. Id. The trial court held an emergency hearing and granted an interim order of temporary custody to allow G.El.S. to receive special services to address his trauma. Doc. 41. A new case plan was filed on February 8, 2017, indicating that the Agency had temporary custody of G.El.S. and that he was placed in a residential treatment facility. Doc. 42.

         {¶5} On August 18, 2017, G.El.S. was released from the residential treatment facility. Doc. 52. At that time, the Agency transferred custody of G.El.S. to another kinship placement and maintained protective supervision over the child. Id. This placement continued until December 22, 2017, when the Agency again requested temporary custody of G.El.S. due to the relative no longer being able to care for the child. Doc. 57. At that time, G.El.S. was placed in a certified foster home with the Adkins family. Doc. 61 and 62.

         {¶6} On June 11, 2018, the Agency filed a motion for permanent custody of G.El.S. and his siblings. Doc. 92. The motion alleged that Sarah and Shane had 1) failed to follow through with the drug treatment recommendations; 2) continued to use drugs in the presence of the children; 3) failed to comply with requested drug screens at times; 4) failed to maintain appropriate legal income; 5) failed to maintain appropriate housing; 6) failed to implement parenting skills taught to them; 7) failed to refrain from criminal activity; and 8) engaged in domestic violence. Id. Crowder filed her report to the court on June 25, 2018. Doc. 99. Crowder noted that G.El.S. had done "extremely well" in the foster home and his behaviors had improved. Id. at 5. She noted that the foster parents would consider adopting G.El.S. if the court granted permanent custody to the Agency. Id. Crowder also noted that although G.El.S. loved his mother and siblings, the vists were a "trigger" for him causing him to become upset before attending a visit. Id. Based upon everything she had reviewed, Crowder stated that she did not believe Sarah would be able to care for the children in the near future. Id. at 8-9. Crowder concluded that although she hoped the siblings could maintain contact with each other, it was her opinion that it would be in G.El.S.'s best interest to grant the Agency's motion for permanent custody. Id. at 9. Crowder filed a supplemental report on November 27, 2018. Doc. 150. In that report, Crowder stated that G.El.S. told her he wanted "to go back to his mother", but did not want to be around his father. Id. at 7. "While he reported that he is doing "good" living with the Adkins, if he could choose he would live with his mother." Id. G.El.S. did not want his foster family to know this as he did not want to hurt them. Id. Despite G.El.S.'s wishes, Crowder did not change her recommendation. Id. at 12.

         {¶7} Hearings on the motion for permanent custody were held on September 18 and October 31, 2018. Doc. 152. On December 27, 2018, the trial court issued its judgment terminating the parental rights of Sarah and Shane. Id. In its judgment, the trial court made the following findings.

The evidence shows that the children have been placed in various foster homes. Each child has experienced significant trauma and show signs of post-traumatic stress disorder. The children are at various levels of treatment for their trauma and post-traumatic stress disorder.
[G.El.S.] is 12 years old. He also has behavioral issues and was placed in a residential facility to address his emotional and behavioral outbursts. Upon release he was placed in kinship care who served as [G.El.S.'s] teacher's assistant. This placement disrupted. He was then placed in his current placement in December 2017 where he is thriving.

Id. at 2. The court found that G.El.S. had been in the temporary custody of the Agency for 12 out of the prior 22 months. [3] Id. at 3. The court also found that the parents had failed to remedy the conditions which required G.El.S. to be removed from the home and that the Agency had made reasonable efforts to reunify the family. Id. at 4. The trial court then granted the Agency permanent custody of G.El.S. and his siblings. Id. at 4-5. Sarah filed a timely notice of appeal from this judgment.[4] Doc. 146. On appeal, she raises the following three assignments of error.

First Assignment of Error
The trial court erred in finding that the Agency made reasonable efforts to reunify the family as required under Ohio Law.
Second Assignment of Error
The trial court erred when it determined that the children could not be returned in a timely manner.
Third Assignment of Error
The decision of the trial court is not in the best interest of the child and the determination was against the manifest weight and sufficiency of the evidence.

         In the interest of clarity, the assignments of error will be discussed out of order.

         Legal ...

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