In re H.S.

• Decision Date: 03 February 2017
• Docket Number: Case Nos. 16CA3569, 16CA3570.
• Citation: 84 N.E.3d 127,2017 Ohio 457
• Parties: In the MATTER OF: H.S. and T.S., Adjudicated Dependent Children.
• Court: Ohio Court of Appeals

84 N.E.3d 127

2017 Ohio 457

In the MATTER OF: H.S. and T.S., Adjudicated Dependent Children.

Case Nos. 16CA3569, 16CA3570.

Court of Appeals of Ohio, Fourth District, Ross County, Ross County.

DATE JOURNALIZED: February 3, 2017

Matthew P. Brady, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is a consolidated appeal from two Ross County Common Pleas Court, Juvenile Division, judgments that granted South Central Ohio Jobs and Family Services, Children's Division (SCOJFS), appellee herein, permanent custody of twelve-year-old H.S.¹ and fourteen-year-old T.S. S.R., the children's biological mother and appellant herein, raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT DETERMINING AND CONSIDERING THE WISHES OF THE MINOR CHILDREN AS PART OF ITS DECISION."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT VIOLATED THE DUE PROCESS RIGHTS OF THE MINOR CHILDREN BY NOT ASCERTAINING THEIR WISHES OR ASSIGNING THEM SEPARATE COUNSEL FROM THE GUARDIAN AD LITEM."

{¶ 2} On September 24, 2013, appellee sought and received temporary emergency custody of H.S. and T.S. On that same day, appellee filed dependency complaints and requested temporary custody. In its attached statement of facts, appellee alleged that on September 23, 2013, a Chillicothe police officer requested appellee to respond to the residence where the children resided with their father. The officer informed the case worker that the police department had received multiple reports of drug activity at the father's residence. The officer additionally explained to the case worker that the previous night, a "loud disturbance" occurred in the father's residence back yard, which involved " 'known' drug dealers" who possessed firearms. The father admitted to the officer that the father had been "smoking crack the past 2 weeks" and allowed "known drug dealers to stay at and visit the home." The case worker asserted that (1) the children were present during drug use and when drug dealers were in the home, (2) the children have missed five days of school thus far, and (3) on the date she responded to the home, the children were home from school because the father overslept.

{¶ 3} The case worker explained that the father informed her that he did not have any relatives who could care for the children and that appellant, their mother, is homeless. He further indicated that appellant often stays at a friend's house that "has been raided within the last 9 months." The children reported that appellant "uses drugs, and they have stayed with her at the Chillicothe Inn before and seen razor blades in the bathroom." The court subsequently continued the children in appellee's temporary custody pending further hearings.

{¶ 4} On February 12, 2014, the magistrate entered "order[s]" that adjudicated the children dependent and that ordered them to remain in appellee's temporary custody.² The trial court did not, however, adopt the magistrate's "order[s]" that adjudicated the children dependent and did not enter separate judgments that adjudicated the children dependent until September 2016.

{¶ 5} On March 7, 2014, appellant filed motions that requested the court to place the children in her care. She alleged that she "has been in full compliance" with the case plan. Appellant later withdrew her motions.

{¶ 6} On April 1, 2014, the magistrate entered dispositional decisions that continued the children in appellee's temporary custody. On that same date, the trial court judge signed entries that repeated the magistrate's decision and states, in part:

"It is the finding of the Magistrate [sic] that said child was previously adjudicated to be a dependent child.

The Magistrate [sic] further finds that permitting the child to remain in his own home is contrary to the welfare and best interests of the child and that reasonable efforts were made to prevent or eliminate the need for removal of the child from his home, and therefore orders that the child be committed to the temporary custody of [appellee]."

{¶ 7} On August 29, 2014, appellee filed a motion that requested the court to continue the children in its temporary custody for six months. To support its motion, appellee attached a letter from the children's case worker that stated that the father "has failed to address any of the agency or this court [sic] concerns." The case worker explained that the father "often tested positive for myriad of substances, including 'crack' cocaine and various opiates." The case worker noted that the father visited with the children, "but not [on] a consistent basis." The case worker asserted that although appellee previously "whole-heartedly supported [appellant's] efforts for reunification," appellant now "has been absent from this agency and has not maintain[ed] consistent visitation with her children." The case worker noted that appellant previously had demonstrated sobriety, but "it is rumored that she has relapse [d] and possibly overdose[d] at one time." The case worker stated that appellee presently is working to substantiate the recent allegations involving appellant. He indicated, however, that appellant "remains homeless, and absent from her children, this worker, and this agency." The case worker stated that due to the parents' lack of progress, appellee intended to seek permanent custody of the children.

{¶ 8} On November 25, 2014, the magistrate issued a decision that noted on September 23, 2014 he held a combined review hearing and hearing to consider appellee's motion to extend temporary custody.³ The magistrate found that the children are "doing well" in appellee's temporary custody and that it is in the children's best interests to continue in appellee's temporary custody. The magistrate therefore extended the temporary custody order for no more than six months.

{¶ 9} On March 10, 2015, appellee filed a second motion to extend temporary custody and attached an updated letter from the case worker. In the letter, the case worker stated that appellant "has moved to the Greenfield area, enrolled into substance abuse counseling in Hillsboro, currently prescribed Suboxone as an antagonist therapy, and is employed." The case worker explained that in February 2015, appellant admitted that "she had relapsed and had battled thoughts of suicide." The case worker related his belief that the parents "have exhausted their more than appropriate time table and have demonstrated their inability to maintain sobriety, follow recommended case services, and thus, follow their court approved case plan." The case worker indicated that appellee would be seeking permanent custody of the children. On March 23, 2015, the trial court extended the temporary custody order for six months.

{¶ 10} On April 9, 2015, the magistrate entered a decision noting that on March 23, 2015 he held a combined review hearing and hearing to consider appellee's motion to extend temporary custody.⁴ The magistrate again found that the children are "doing well" in appellee's temporary custody and continued the temporary custody order.⁵

{¶ 11} On September 18, 2015, appellee filed a third motion to extend temporary custody and attached an updated letter from the case worker. In the letter, the case worker stated that (1) the "parents continue not to engage or complete services," (2) the father's last known address is in Sandusky, Ohio, and (3) the mother is incarcerated and charged with second-degree felony felonious assault. The case worker related his belief that the parents "have demonstrated their inability to maintain sobriety, follow recommended case services, and thus, follow their court approved case plan." The case worker stated that the agency would seek permanent custody of the children.

{¶ 12} On September 21, 2015, the trial court extended the temporary custody order for an additional six months.⁶ On that same date, appellee filed motions that requested permanent custody of the children. Appellee alleged that (1) the children have been in its temporary custody for more than twelve of the past twenty-two consecutive months; (2) the children cannot and should not be reunified with either parent within a reasonable time; and (3) placing the children in appellee's permanent custody is in their best interests. To support its motion, appellee attached the case worker's affidavit. The case worker averred that the children have been in appellee's temporary custody since September 22, 2013.⁷ The case worker alleged that the father:

"has failed to maintain stable housing for more than three months, he has lived in multiple residences within the past two years and has failed to keep the agency informed of the changes in address; has failed to consistently drug screen and has failed to present consistently with negative drug screens when he does screen; has failed to participate in recommended services including drug and alcohol counseling; has failed to consistently visit with the child; and has failed to complete the case plan."

{¶ 13} The case worker stated that appellant "has failed to consistently visit with the child, has failed to maintain stable housing, has continued to abuse illegal substances and she is currently incarcerated at the Ross County Jail." The case worker further asserted that the parents have not remedied the conditions that led to the children's removal and that the children cannot and should not be returned to either parent. He also opined that placing the children in appellee's permanent custody is in their best interest.

{¶ 14} On January 6, 2016, the guardian ad litem filed a recommendation that the court place the children in appellee's permanent custody.

{¶ 15} On January 14, 2016, the magistrate held a hearing to consider appellee's permanent custody motions. Appellee...