In re L.R.D.
| Decision Date | 17 January 2019 |
| Docket Number | No. 107301,107301 |
| Citation | 128 N.E.3d 926,2019 Ohio 178 |
| Parties | IN RE: L.R.D., et al., Minor Children [Appeal by S.D., Father] |
| Court | Ohio Court of Appeals |
JOURNAL ENTRY AND OPINION
{¶1} Appellant ("Father") appeals a judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, granting permanent custody of his minor children, R.D. and S.D., to appellee Cuyahoga County Department of Children and Family Services ("CCDCFS" or "the agency"). He claims the following three errors:
{¶2} We find no merit to the appeal and affirm the trial court's judgment.
{¶3} On April 18, 2017, police were called to an extended-stay motel room where they found R.D. and S.D. in close proximity to hypodermic needles and other drug paraphernalia. Father and his wife, the children's mother ("Mother"), were under the influence of drugs, and the children were hungry. (Tr. 22.) The parents were subsequently charged and convicted of child endangering, and the children were taken into agency custody.
{¶4} Joyce Butler, a social worker assigned to the case, testified at the permanent custody hearing that CCDCFS developed a case plan for the parents with the goal of reunification. Both parents had been addicted to heroin for twenty years. Father was also addicted to methamphetamine and had previously been diagnosed with schizophrenia
. Years earlier, the couple's two older children, who were 18 and 20 years old at the time of trial, had been placed in the legal custody of their paternal grandmother as a result of their parents' drug abuse and multiple incarcerations.
{¶5} Butler testified that, in June 2017, she referred Father to Recovery Resources for a drug assessment to determine the appropriate course of treatment. Father failed to appear for the appointment, telling Butler he did not know how to get to the appointment. Butler referred Father for a second assessment at MetroHealth in July 2017. This was a dual diagnosis program designed to treat Father's substance abuse and mental health issues. Father appeared for the initial appointment, but failed to return for the second appointment to complete the assessment. He told Butler that he missed the second appointment because he did not have a ride. Butler referred Father for a third assessment in September 2017, but he missed that appointment because he was incarcerated for violating his probation as a result of a positive drug test and failure to report.
{¶6} Butler testified that she attempted to assist Father in obtaining housing for himself and his children. She scheduled a meeting with Father to make a housing referral, but he failed to attend the meeting. Butler was unable to further assist Father in obtaining housing once he was imprisoned, and he was still in prison at the time of the permanent custody trial.
{¶7} Father visited the children for two hours every week until he was incarcerated. Butler testified that Father loves his children, but the visits were always supervised due to Father's continued drug use. Father admitted to Butler that he visited the children while he was high on drugs. (Apr. 11, 2018 tr. 35.) There had also been a threat that the family would take the children from the foster home. Butler did not believe it was in the children's best interest to visit Father in jail, particularly since they were already exhibiting significant behavioral issues. Consequently, Father had no visits with the children from August 2017 through the time of the permanent custody hearing on April 11, 2018.
{¶8} Upon entering temporary custody, the children were placed in a foster home where they remained throughout the pendency of the case. The children were quiet at first and L.D., who was eight years old, was very protective of her younger sister. A few months later when the children were adjusted to their foster home, they told their foster mother about their family life before foster care. They explained that their maternal grandmother took them shoplifting at Macy's and Sears. The children's parents also shoplifted with them. They called it "boosting," and taught the children to "run real fast" if they get caught. (Apr. 11, 2018 tr. 82.) L.D. and S.D. re-enacted their shoplifting experiences, as well as their parents' drug and alcohol abuse, with their Barbie dolls. (Apr. 11, 2018 tr. 102.)
{¶9} The children's foster mother testified that the children's behavior significantly improved during the time they were in foster care. She explained that when the children entered foster care, they were loud and did not know how to behave. For example, when they went to restaurants, S.D. "might stand up on a chair and yell across the restaurant, hey you, I need a new drink[.]" (Apr. 11, 2018 tr. 100.) Shopping with the children was challenging "because they were doing cartwheels and they were touching things, and [foster father] just couldn't control them in the store." (Apr. 11, 2018 tr. 110.)
{¶10} The children were also behind in their education. L.D. was eight years old and had never been to school or had any kind of education. The foster mother requested learning disability services and was told that L.D. was not eligible for those services because she was not learning disabled; she was "educationally neglected." (Apr. 11, 2018 tr. 106.) Consequently, L.D. was placed in first grade even though she should have been in third grade, and her foster family arranged for tutoring outside of school. By the end of one year, L.D. was reading picture books and getting straight A's in school.
{¶11} L.D. also needed counseling when she entered foster care. She did not respond well when people told her "no." At one point, she threatened to cut herself with a blade as she had seen her older sister do when she did not get what she wanted. (Apr. 11, 2018 tr. 100.) Father admitted to Butler that when he had custody of the children, he gave them whatever they wanted, even if he had to steal for them. (Apr. 11, 2018 tr. 49.)
{¶12} S.D., who was five years old at the time of the permanent custody trial, was also behind in learning the alphabet and had behavior problems. Her problems improved, but she was still struggling in school at the time of the permanent custody trial and was likely to repeat kindergarten. However, both children were eventually able to accept "no" for an answer without having a tantrum or threatening to harm themselves. They could also go out in public without causing a scene. They were no longer timid and developed a close attachment to their foster family, including aunts and grandparents. (Apr. 11, 2018 tr. 114-115.)
{¶13} CCDCFS investigated family members for possible placement of the children. The children's paternal grandmother was not approved because of her extensive criminal record, which included an aggravated murder conviction in 1972 and a child endangering conviction in 2015. The paternal grandmother also failed to appropriately parent L.D. and S.D.'s older siblings when they were in her legal custody. The children's great uncle, B.D., told Butler he was unable to care for the children and believed a foster family would provide the best care for the children. (Apr. 11, 2018 tr. 42.)
{¶14} Another great uncle, R.D., expressed a willingness to take legal custody of the children and, in January 2018, Father filed a motion for legal custody of the children to be granted to R.D. However, when Butler visited his home, the home was full of smoke because he was a heavy smoker. Butler was concerned the smoke would be harmful to the children, especially L.D., who had asthma
.
{¶15} R.D. testified at the permanent custody trial that he had recently quit smoking, but Butler was still concerned that he did not understand the educational and behavioral needs of the children. When Father and the children were living with R.D., R.D. did nothing to help to enroll L.D. in school. R.D. helped raise Father and Father's older children. Yet, at the time of the permanent custody hearing, both Father and one of his older children were incarcerated. Butler was also concerned that R.D.'s home was not large enough to accommodate the children.
{¶16} At the time of the permanent custody trial, the children had been in temporary custody for 358 days, and Father had not completed any drug treatment program to address his 20-year addiction. He was also incarcerated, and was, therefore, unable to obtain stable housing. Butler opined that the children's progress would suffer if they remained in temporary custody and that permanent custody was in the children's best interest. (Apr. 11, 2018 tr. 51.) The foster mother agreed that the children did not like being known as foster children and that they wanted permanency. She believed that the longer the children remained in a temporary situation, the more harm it would do to them. (Apr. 11, 2018 tr. 163.) The guardian ad litem, Christina Joliat, also believed that an order granting permanent custody to CCDCFS was in the children's best interest. She told the trial court that because the children's entire lives have been "in such upheaval," they only recently "started to improve and enjoy themselves as children." (Apr. 11, 2018 tr. 165-166.)
{¶17} After receiving testimony and exhibits and proposed findings of fact and conclusions of law submitted by the parties, the trial court granted permanent custody of the children to CCDCFS. Father now appeals the trial court's judgment.
{¶18} In the first assignment of error, Father argues the trial court erred in holding a permanent custody hearing without first...
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