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In re JA.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 16, 2020

IN RE JA.S., ET AL. Minor Children Appeal by T.S., Mother

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD16902386, AD16902387, and AD16902388


          Zukowsky Law, L.L.C., and Amichai Eitan Zukowsky, for appellant.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony R. Beery, Assistant Prosecuting Attorney, for appellee C.C.D.C.F.S.



         {¶ 1} Appellant T.S. ("Mother") appeals an order of the Cuyahoga County Juvenile Court ("juvenile court") that granted permanent custody of her children, Ja.S., A.S., and Jo.S., to the Cuyahoga County Division of Child and Family Services ("CCDCFS" or "the agency"). For the reasons that follow, we affirm the judgment.

         I. Factual and Procedural History

         {¶ 2} T.S. is the mother of Ja.S., A.S., and Jo.S., three minor children. The father of the children died prior to the pendency of CCDCFS's action.

         {¶ 3} On January 23, 2018, a house raid at T.S.'s home resulted in an indictment against T.S. for possession of drugs and a firearm. The agency was initially granted emergency temporary custody of Ja.S. on January 23, 2018, and A.S. and Jo.S. on January 25, 2018. The juvenile court subsequently modified the order to temporary custody to CCDCFS.[1]

         {¶ 4} An amended case plan dated February 22, 2018, required T.S. to address her legal issues stemming from the raid and her pending charges as well as substance abuse concerns and her ability to provide for her children's basic needs. T.S. was to obtain consistent mental health and psychiatric care and take medications as prescribed. T.S. was to obtain and maintain appropriate housing. T.S. and Ja.S. were to fully participate in drug and mental health assessments and follow the recommended services.

         {¶ 5} As of March 1, 2018, T.S. was recently released from a short jail stay and her whereabouts were unknown. T.S. was noted as bipolar with possible anxiety. T.S. would not "engage without an attorney" and the agency had not secured T.S.'s signature on the amended case plan. As of March 1, 2018, T.S. and her mother had visited the children twice since the agency received custody. CCDCFS had not yet made referrals for T.S.'s substance abuse and mental health services and counseling for her children.

         {¶ 6} On April 3, 2018, T.S. stipulated to temporary custody to CCDCFS. The three children, Ja.S., age 14, and AS. and Jo.S., twins aged 13, were placed in foster care.[2]

         {¶ 7} A semiannual administrative review ("SAR") meeting was held on August 23, 2018. T.S. did not attend the meeting in person, but the twins were present. T.S. participated in the meeting by texting information to the twins' telephone. T.S. had not demonstrated sobriety and denied substance abuse issues but was engaged in counseling services. Further, T.S. denied knowing the amended case plan required her to submit to an alcohol or drug assessment but stated her willingness to submit to those services and provide a urine screen. T.S. was not receiving mental health services or medication due to lack of insurance. T.S. had been in her own housing for approximately five months and was employed as a cleaner at a hotel. T.S. had weekly visitation with the twins. The agency was to provide a referral for a drug assessment and screening within 24 hours of the August 23, 2018 meeting. T.S. completed an alcohol and drug assessment in the summer of 2018.

         {¶ 8} Based upon the criminal charges stemming from the January 2018 raid, T.S. pleaded guilty on September 6, 2018, to (1) drug possession, a fifth-degree felony, with forfeiture specifications, and (2) having weapons while under disability, a third-degree felony, with forfeiture specifications.[3] T.S. tested positive for drugs on September 11, 2018, and a capias was issued. T.S. returned for sentencing on October 16, 2018, where she was (1) sentenced to one and one-half years of community control on each count, and (2) was required to complete an inpatient drug-treatment program starting on October 16, 2018, at Nora House and continue with vivitrol shots.

         {¶ 9} On October 23, 2018, CCDCFS filed a motion to modify temporary custody to permanent custody.

         {¶ 10} Following completion of the court-ordered inpatient drug-treatment program, T.S. enrolled in an intensive outpatient treatment program at Stella Maris in November 2018. T.S. was discharged due to lack of attendance. Stella Maris recommended T.S. attend AA meetings, obtain a sponsor, identify a home group, and refrain from using mind- or mood-altering substances.

         {¶ 11} In February 2019, CCDCFS was unable to document T.S.'s compliance with mental health initiatives and her housing and employment situation. T.S.'s visits with the children were inconsistent, although she saw the twins on Thanksgiving and Christmas and CCDCFS noted that T.S. was "appropriately engaged with her children." The twins were very attentive to T.S. and regularly stated their desire to be home with T.S. to support and protect her. Ja.S. remained AWOL.

         {¶ 12} During a February 28, 2019 SAR meeting, T.S. texted Jo.S. and A.S. to relay information to the agency but refused to participate in the meeting or speak with a CCDCFS worker due to her frustration with "the course of the case." T.S. believed she had completed the case plan and had paperwork to document her compliance. While T.S. reported completion of an inpatient alcohol and drug treatment program as well as an outpatient treatment at Stella Maris in November 2018, T.S. did not reveal that she was discharged from Stella Maris due to lack of attendance. T.S. refused to perform an updated assessment.

         {¶ 13} When T.S. failed to report to the probation department on March 1, 2019, a capias was issued. The court ordered T.S. to return to Stella Maris. In March 2019, T.S. completed Stella Maris's inpatient drug-treatment program and enrolled in outpatient therapy. The previously issued capias was recalled on April 10, 2019.

         {¶ 14} As of April 25, 2019 - the date of the custody trial - T.S. was engaged with Stella Maris's outpatient program and sober for 17 days after completing a two and one-half-week inpatient program. T.S.'s attitude was improved in comparison to when she previously underwent substance abuse treatment at Stella Maris in the fall of 2018. T.S. received treatment for her mental health at the same time that she received substance abuse treatment.

         {¶ 15} A custody trial was held on April 29, 2019. T.S. was present at the trial, but did not testify. The court heard testimony from CCDCFS extended services social worker, Alia Neal, and the children's GAL. Based upon the trial testimony, the juvenile court granted permanent custody of the children to ...

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