from Marion County Common Pleas Court Family Division Trial
Court No. 2016 AB 0009
A. Workman for Appellant
Kahle for Appellee
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.
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. 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.
On September 9, 2016, the Agency filed a motion for an
emergency removal of G.El.S. and three of his
siblings 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.
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.
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.
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.
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.  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. 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
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.
interest of clarity, the assignments of error will be
discussed out of order.