In re D.E. S.L.
| Decision Date | 25 February 2021 |
| Docket Number | No. 20AP-85,No. 20AP-83,20AP-83 |
| Parties | In the MATTER OF: [D.E. S.L., Mother, Appellant]. In the Matter of: [R.P. et al., S.L., Mother, Appellant]. |
| Court | Ohio Court of Appeals |
DECISION
{¶ 1} Appellant, S.L. ("appellant"), mother of four minor children, D.E., Jr., R.P., C.P., and T.P. (collectively, "the children"), appeals the January 22, 2020 decisions and judgment entries of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, which granted permanent custody of the children to appellee, Franklin County Children Services ("FCCS"). For the following reasons, we reverse.
{¶ 2} Prior to the opening of the cases presently before us, as will be referenced briefly herein, appellant and the children had been involved in prior cases with FCCS before the juvenile court. The two cases before us now also involve FCCS. In one, FCCS sought permanent custody of D.E., Jr., minor child of D.E., Sr. and appellant. In the other case, FCCS sought permanent custody of R.P., C.P., and T.P., minor children of X.P.1 and appellant.2 On May 10, 2018, FCCS filed a complaint alleging D.E., Jr. was a dependent child pursuant to R.C. 2151.04(C). On the same date, FCCS filed a complaint in a separate case alleging R.P., C.P., and T.P. were dependent children pursuant to R.C. 2151.04(C).3 On May 11, 2018, the juvenile court magistrate ("magistrate") filed orders granting FCCS temporary custody of the children. On the same date, the magistrate filed findings of fact and conclusions of law finding FCCS made reasonable efforts to prevent removal of the children.
{¶ 3} On June 15, 2018, the magistrate held a hearing at which appellant was present but was not at that time represented by counsel. At the hearing, the magistrate inquired of appellant for purposes of determining compliance with the Indian Child Welfare Act ("ICWA") as follows:
(June 15, 2018 Tr. at 4.) On June 20, 2018, the magistrate filed an entry reflecting that appellant was sworn in for "Native American heritage history." On June 21, 2018, the magistrate reappointed Brian L. Herzberger as the children's guardian ad litem ("GAL"), having previously served as GAL to the children from his appointment in prior cases on June 9, 2017.
{¶ 4} On August 20, 2018, FCCS filed semi-annual reviews and case plans in both cases. On August 23, 2018, the magistrate filed decisions finding the children to be dependent, pursuant to R.C. 2151.04(C), and ordering the children be committed temporarily to the custody of FCCS pursuant to R.C. 2151.353(A)(2). The entries noted temporary custody would continue until further notice of the court. The juvenile court adopted the magistrate's decisions.
{¶ 5} On January 4, 2019, FCCS filed motions for permanent custody of the children. On January 7, 2019, the juvenile court filed notice of the permanent custody hearing. On February 6, 2019, the magistrate filed findings of fact and conclusions of law finding FCCS made reasonable efforts to finalize a permanency plan. On March 5 and July 8, 2019, FCCS filed semi-annual reviews.
{¶ 6} On March 8, 2019, entries were filed granting FCCS's request for a continuance in order to perfect service. On March 8, 2019, an entry was filed granting the GAL's request for a continuance to complete his investigation. On April 16, 2019, entries were filed granting the GAL's request for a continuance to review the children's file. On May 22, 2019, an entry was filed granting the GAL's request for a continuance due to a conflict.
{¶ 7} On July 17, 2019, the GAL filed a report. On July 18, 2019, the juvenile court held a pretrial hearing. On July 19, 2019, the juvenile court filed an entries reflecting its decision to grant appellant's request for a continuance to complete discovery. On the same entry, below the date of the new hearing on the motion for permanent custody, the following notice was provided: (Emphasis sic.) On October 29, 2019, FCCS refiled motions for permanent custody of the children; however, these motions were dismissed by FCCS, and FCCS pursued only the motions for permanent custody filed on January 4, 2019.
{¶ 8} On December 2, 2019, the juvenile court held a hearing on the motion for permanent custody. Appellant was not present at the hearing. The juvenile court denied a request by appellant's counsel to continue the hearing.
{¶ 9} At the hearing, Kristie Marshall, a caseworker for FCCS, testified that, on two occasions, she had been assigned to cases involving the children. Marshall had first been assigned to a case involving the children when it had been brought as "[v]oluntary case openings protective service," or "VPS" case. (Dec. 2, 2019 Tr. at 13.) According to Marshall, VPS meant that "the parent," in this matter, appellant, "signed an agreement" for FCCS to receive custody of children "for a certain period of time." (Dec. 2, 2019 Tr. at 13.) Beginning August 1, 2017, R.P., C.P., and T.P. were placed in FCCS's custody under a 30-day VPS agreement with appellant to alleviate homelessness. It appears the VPS continued through November 2017.
{¶ 10} Following the initial VPS case, appellant had been linked with Friends of the Homeless, a shelter organization, and had been staying at a shelter. FCCS secured housing for appellant; however, appellant declined the housing. As a result of her decision to decline housing, the shelter informed appellant she had to leave the shelter.4 Appellant signed an agreement with the shelter stating she would not reapply for shelter for a period of 90 days.
{¶ 11} According to Marshall, after being removed from the shelter, appellant stayed at a friend's home with the children until they were removed from that home. As a result of this removal, appellant and the children were rendered homeless and were living in a car. Thereafter, appellant brought the children to FCCS on January 20, 2018. Due to homelessness, appellant was unable to wash the family's clothes or provide for other basic needs for the children. Appellant entered into another VPS to relinquish custody of the children to FCCS for a period of 30 days. Marshall testified that appellant relinquished her children to FCCS on January 20, 2018. She was careful not to state that the children had been removed because the relinquishment was pursuant to appellant's VPS. Marshall testified she was assigned the present cases involving the children in February 2018.
{¶ 12} According to Marshall, FCCS received a temporary order of custody for the children on February 16, 2018. The children remained in the uninterrupted custody of FCCS from that date through the permanent custody hearing. At the time of the permanent custody hearing, D.E., Jr. was nine years old, R.P. was six years old, C.P. was five years old, and T.P. was four years old.
{¶ 13} Marshall testified that in January 2018, after FCCS entered into the VPS with appellant, the children were placed with N.C., a foster parent. On November 20, 2018, the children were placed with a relative of appellant. On December 31, 2018, due to a disruption, the children were moved and separated. T.P. returned to N.C., whereas D.E., Jr., R.P., and C.P. were moved to a foster home in Galion, Ohio. In April 2019, D.E., Jr. was placed at Fox Run Center ("Fox Run"), a residential treatment facility for children. In July 2019, R.P. was placed at St. Vincent's Family Center ("St. Vincent"), a residential treatment facility for children. C.P. remained at the foster home in Galion.
{¶ 14} Based on her observations, Marshall testified the interactions between C.P. and C.P.’s foster parents were appropriate and they were bonded to one another. C.P.’s foster parents took very good care of C.P. and C.P. was affectionate toward the foster parents. C.P.’s foster home was a potential adoptive placement for C.P.
{¶ 15} Marshall stated that R.P. was ready to be discharged from residential treatment at St. Vincent's.5 T.P.’s foster home was a potential adoptive placement for T.P. D.E., Jr. had no projected discharge date from Fox Run. Marshall believed D.E., Jr. needed to continue residential treatment.
{¶ 16} There were no plans to reunite the children in the same foster home. Marshall testified that even after their release from residential treatment, D.E., Jr. and R.P. would not be able to return to their prior foster homes. However, the semi-annual review indicated that R.P. had been returned to the home of the foster family who cared for C.P. Marshall was unaware of any adoptive placements in which all the children would remain together. Three of the children were able to verbalize their wishes for placement; those three stated they wished to return to appellant.
{¶ 17} Marshall testified that D.E., Sr. had not participated with the case during its pendency, had not visited D.E., Jr., and had not been in contact with FCCS by telephone or e-mail. X.P. had not been involved during the pendency of the case. FCCS received written communication from X.P. in which he stated he was incarcerated until 2025, though he wished he had been able to be involved. X.P. had no contact with the children. Marshall testified it was her understanding that X.P. was indeed incarcerated, with his earliest possible release date in 2025.
{¶ 18} Marshall described the elements of the case plan with which appellant was required to comply: (1) provide for the basic needs of the children, including shelter, food, clothing, education, medical, and any special needs, (2) obtain legal employment, and (3) obtain legal housing. According to Marshall, appellant...
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