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In re M.A.

Court of Appeals of Ohio, Twelfth District, Butler

December 30, 2019

IN RE: M.A.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2017-0105

          Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, for appellee.

          Amy R. Ashcraft, for appellant.

          Legal Aid Society of Southwest Ohio, LLC, Guardian ad Litem.

          OPINION

          HENDRICKSON, P.J.

         {¶ 1} Appellant, father of M.A., appeals the decision of the Butler County Court of Common Pleas, Juvenile Division, granting permanent custody of M.A. to appellee, Butler County Department of Job and Family Services, Children Services Division ("BCDJFS").[1] For the reasons detailed below, we affirm the juvenile court's decision.

         {¶ 2} BCDJFS filed a complaint on March 20, 2017, alleging dependency of M.A. and requesting temporary custody. At the time of the complaint, M.A. was nearly two and one- half years old and lived with his mother and three older half-siblings.[2] The juvenile court granted temporary custody and BCDJFS placed M.A. with his paternal grandmother. That placement proved unsuitable, so in early April 2017, M.A. was moved into foster care. Based in part on the need to change placement and because the initial complaint did not provide specific facts for the dependency allegation, BCDJFS filed an amended complaint on April 6, 2017. The amended complaint alleged several bases for dependency: M.A.'s mother was homeless, unemployed, and had been sentenced to serve time in jail; appellant had active warrants from the Middletown Municipal Court for drug offenses; appellant had been arguing and fighting over housing and finances in the presence of the children; and appellant had violated an earlier order from the court to have no contact with M.A.

         {¶ 3} On June 5, 2017, the juvenile court adjudicated M.A. dependent. A dispositional hearing was held on July 7, 2017 before a magistrate. The magistrate ordered M.A. to remain in the temporary custody of BCDJFS and approved a case plan which had the goal of reunification of M.A. with his parents. This case plan required appellant to complete a substance abuse/mental illness assessment, complete treatment and therapeutic programs based on that assessment, submit to drug screening upon request, procure and maintain stable employment and housing, participate in a parenting education program, and demonstrate an understanding of his child's individual needs with an ability to consistently meet those needs. The juvenile court subsequently adopted the magistrate's dispositional orders.

         {¶ 4} During the pendency of the case, appellant only limitedly complied with the case plan requirements. Appellant completed the required substance abuse/mental illness assessment and requested drug screenings, however, he failed to complete the recommended treatment and therapeutic programs. In addition, appellant routinely tested positive for illicit controlled substances such as amphetamine, methamphetamine, cocaine, and marijuana on requested drug screenings. Furthermore, appellant was intermittently incarcerated for different criminal charges. Finally, appellant had his regular visitation appointments with M.A. suspended on two occasions because of his failure to appear at appointments or arrive late to appointments two times within a 30-day period.

         {¶ 5} On October 12, 2018, BCDJFS moved for permanent custody of M.A. In March 2019, a juvenile court magistrate held a hearing on the matter. At the hearing, the magistrate heard testimony from M.A.'s mother, appellant, and the assigned BCDJFS caseworker. Additionally, BCDJFS presented several documentary exhibits including the drug screening analyses, the social summary reports generated by BCDJFS, appellant's substance abuse/mental illness assessments, and the reports from appellant's limited treatment/therapeutic services.

         {¶ 6} On March 25, 2019, the magistrate granted the motion for permanent custody. The juvenile court overruled objections filed by appellant and adopted the magistrate's decision. Appellant now appeals, raising two assignments of error for review. For ease of analysis, the two assignments of error will be discussed together.

         {¶ 7} Assignment of Error No. 1:

         {¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING BCCS'S MOTION FOR PERMANENT CUSTODY WITHOUT THE SUPPORT OF CLEAR AND CONVINCING EVIDENCE.

         {¶ 9} Assignment of Error No. 2:

         {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING THE STATE'S MOTION FOR PERMANENT CUSTODY WHICH WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶ 11} In both assignments of error, appellant argues that the trial court should not have granted BCDJFS permanent custody because BCDJFS failed to prove permanent custody was in M.A.'s best interest ...


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