In re R.M.

• Decision Date: 16 June 2017
• Docket Number: NO. 27318,27318
• Citation: 92 N.E.3d 382,2017 Ohio 4325
• Parties: IN RE: R.M.
• Court: Ohio Court of Appeals

92 N.E.3d 382

2017 Ohio 4325

IN RE: R.M.

NO. 27318

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on June 16, 2017

MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301 W. Third Street, 5^th Floor, Dayton, Ohio 45422, Attorney for Appellee

JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 N. Main Street, Suite 200, Dayton, Ohio 45415, Attorney for Appellant

OPINION

DONOVAN, J.

{¶ 1} This matter is before the Court on the October 28, 2016 Notice of Appeal of I.M. ("Father"). Father appeals from the October 21, 2016 "Decision and Judgment Concerning the Objections to the Decision of the Magistrate," which overruled his objections to the Magistrate's Decision and granted permanent custody of Father's son, R.M., who was born in 2013, to Montgomery County Department of Job and Family Services—Children Services Division ("MCCS"). We hereby affirm the judgment of the trial court.

{¶ 2} MCCS filed a "Dependency Complaint" and a "Motion and Affidavit for Interim Temporary Custody at an ex parte Proceeding" in the juvenile court on September 16, 2013, alleging that R.M. was born by C-section at 32 weeks gestation, due to his mother, R.B. ("Mother") having severe pre-eclampsia. According to the complaint, R.M. weighed 3 pounds, 5.8 ounces at birth, and he was put on a ventilator with brain and kidney problems. The complaint alleged that Mother did not realize she was pregnant until she was six months into the pregnancy and did not receive prenatal care. The complaint further provides that Father has been abusive to Mother, and that there are concerns "both parents have alcohol abuse issues." The complaint provides that Mother has two older children who live with a relative in Kentucky due to Mother's alcohol abuse. According to the complaint, the family is from Nepal, without family resources, and they do not speak English. The complaint further provides that Mother was discharged from the hospital, and that R.M. remains in the NICU. According to the complaint, a caseworker, with an interpreter, visited Mother and Father in their home, and they had no baby supplies, furniture or a bed for themselves or any source of income, and they reportedly were living on unknown savings. The complaint provides that Mother and Father struggle with connecting with resources due to their language barrier and lack of support.

{¶ 3} According to the complaint, R.M. had two bilateral brain hemorrhages and was on oxygen for a time, and he had a feeding tube while hospitalized. The complaint provides that Mother and Father have visited R.M. in the hospital "sporadically," with several days between visits. It further provides that the hospital is preparing to discharge R.M. The complaint provides that the agency has concerns about the parents' ability to meet R.M.'s special needs, and it notes that at a meeting with hospital staff on September 12, 2013, both parents threatened to harm or kill themselves if they are not permitted to take R.M. home with them. Finally, the complaint provides that Mother may be married to a man who remains in Nepal, and that Father is also married to someone else who lives in Nepal. The court issued an "Order of Temporary Custody ex Parte" on the same date the complaint was filed.

{¶ 4} After a shelter care hearing on September 20, 2013, a "Magistrate's Order of Interim Custody" was issued 10 days later. It provides that Mother and Father have substance abuse issues and do not have appropriate supplies in their home for R.M. It provides that MCCS has concerns that R.M.'s medical issues may be the result of Mother's consumption of alcohol during her pregnancy. The order provides that interim temporary custody to MCCS is in R.M.'s best interest.

{¶ 5} A hearing on the complaint was scheduled for November 15, 2013, and on that date, the "Report of the Guardian Ad Litem" ("G.A.L.") was filed. It provides that the G.A.L. recommends that the juvenile court grant temporary custody to MCCS. On December 5, 2013, the "Magistrate's Decision and Judge's Order of Disposition of Temporary Custody" was filed. The Magistrate determined the allegations in the complaint to be true and declared R.M. a dependent child.

{¶ 6} On August 3, 2014, MCCS filed a "Motion and Affidavit for a First Extension of Temporary Custody to MCCS." The affidavit of Shelly Aggarwal provides that Mother and Father are making progress on their case plan objectives, and that they are both employed at a restaurant full time, each making $800.00 per month. According to the affidavit, both parents completed the Council for Alcohol and Drug Abuse Services therapy for substance abuse, both parents deny current use of alcohol, and both completed parenting classes. Aggarwal averred that Mother and Father were living rent free in an apartment provided by their employer, and they still need to obtain independent housing. The affidavit provides that MCCS was providing assistance in locating housing and utilities. According to Aggarwal, both parents visit with R.M. at MCCS on Wednesdays from 1:00–4:00 p.m., unless they are unable to leave work. Aggarwal averred that Mother and Father make every effort to attend the visits, and that they are "very loving and nurturing" to R.M., bringing age appropriate snacks and toys to share with him. The affidavit provides that both parents are attentive to R.M. and spend most of the visits playing and talking with him.

{¶ 7} On October 22, 2014, the "Magistrate's Decision and Judge's Order Granting a First Extension of Temporary Custody" was filed. It provides that Mother and Father made progress on their case plan objectives "but they still need to obtain and maintain independent, safe and appropriate hous[ing] that is not provide[d] by their employer." The Magistrate found that a first extension of temporary custody to MCCS is in R.M.'s best interest.

{¶ 8} On January 30, 2015, and February 3, 2015, MCCS sought a second extension of temporary custody. The supporting affidavit of Shelly Aggarwal provides that in December 2014, "the parents called MCCS and stated that they had moved to Virginia to live with a relative and look for work. The parents did state that they intended to return to the Dayton area in two months. MCCS has attempted to make contact with the family via phone however the phone number was disconnected." The affidavit provides that the family "still needs to obtain independent housing and a source of income." On February 13, 2015, Aggarwal filed Affidavits for Service by Posting, averring that Mother's and Father's whereabouts were unknown.

{¶ 9} On April 15, 2015 a "Magistrate's Decision and Judge's Order Granting a Second Extension of Temporary Custody" was filed. It provides that Mother and Father have left the State of Ohio, their whereabouts are unknown, and that based on the credible testimony presented in court, a second extension of temporary custody is in R.M.'s best interest.

{¶ 10} A "Motion and Affidavit for Commitment to the Permanent Custody of MCCS" was filed on July 22, 2015. Aggarwal's affidavit provides at the end of December 2014, "the parents stopped coming to visitation when they moved out of state." Aggarwal averred that Mother and Father are "reporting that they have obtained housing and benefits through Human Services in Rochester [,] New York. In addition [Father] has obtained part-time employment. Since December 2014, MCCS made several attempts to get in touch with the parents. MCCS did not have a working phone number for the parents." According to the affidavit, when "MCCS did speak to the parents in January 2015, the parents were asked to make monthly contact with MCCS but the parents did not. In July 2015, MCCS was again able to make contact with the parents by phone. With the assistance of an interpreter, MCCS did arrange a meeting with the parents that would take place on the phone." Aggarwal averred that when "the phone conversation took place the parents did tell MCCS that they had housing, benefits, income, and were not * * * drinking alcohol. The [p]arents did e-mail MCCS proof of housing, income, and benefits." According to Aggarwal, in July 2015, MCCS "made the request that New York complete an interstate home study to determine if the parents' home was appropriate for the child. The child continues to do well in care. The child attends speech therapy weekly at Dayton Children's and receives HMG/PACE service bi-weekly to help with his socialization. The child is not school age." The affidavit provides that no "relatives are able, willing and appropriate to care for the child." The affidavit further provides, "[b]ecause the parents are unfit/unable to care for the child, it is in the best interest of the child for the Court to commit the child to the permanent custody of MCCS."

{¶ 11} On September 22, 2015, a "Motion to Transfer Foster Care" was filed by counsel for Father. It provides in part that Father "hereby moves this Court for an Order transferring the child's foster care provider to someone residing in or near Rochester, New York, because both parents do not have the financial resources to travel to Dayton, Ohio for visits with the child and cannot obtain employment in or near Dayton, Ohio." The motion provides that "[b]oth parents now reside by economic necessity in New York where they have suitable housing and employment." An "Amended Motion and Affidavit for Commitment to the Permanent Custody of MCCS" was filed on September 24, 2015. A "Notice of Hearing" for November 9, 2015 was issued on September 29, 2015.

{¶ 12} At the start of the hearing on November 9, 2015, counsel for Father indicated that his "Motion to Transfer Foster Care" was pending, and that he sent a copy of the motion and the notice of hearing to Father via ordinary mail, and that the mail was not returned as undeliverable. He stated, "My client has not appeared this morning, at least as of now 10:00 a.m. an hour past the Notice date and time. The question...