In re G.C.M.G.

1

2023-Ohio-3018

IN THE MATTER OF: G.C.M.G. AND J.A.G., DEPENDENT CHILDREN

Nos. 2023-P-0024, 2023-P-0025

Court of Appeals of Ohio, Eleventh District, Portage

August 25, 2023

Civil Appeals from the Court of Common Pleas, Juvenile Division Trial Court Nos. 2022 JCF 00607, 2022 JCF 00608

Katherine E. Rudzik, 26 Market Street, (For Appellant Heather Duche).

Victor V. Vigluicci, Portage County Prosecutor, and Julia B. Adkins Assistant Prosecutor, (For Appellee, Portage County Department of Job and Family Services).

Karlek D.D. Jarvis, Suite A, Ravenna, (Guardian Ad Litem).

Thomas Grist, 228 West Main Street, Ravenna, (For G.C.M.G., Minor).

OPINION

MATT LYNCH, J.

{¶1} Appellant, Heather Duche, appeals from the judgment of the Portage County Court of Common Pleas, Juvenile Division granting permanent custody of her children, G.C.M.G. and J.A.G., to appellee, the Portage County Department of Job and Family Services (PCDJFS). For the following reasons, we reverse the decision of the lower court.

{¶2} Duche is the biological mother of G.C.M.G., born July 27, 2011, and J.A.G., born July 13, 2012. The children's biological father is Garrett Greenstreet, who has not appealed from the lower court's termination of his parental rights.

{¶3} On November 30, 2020, complaints were filed alleging the children were abused, neglected, and dependent. They alleged that the children had been left in the care of an individual by Duche while she had a medical procedure and she did not return to pick up the children. Following a shelter care hearing, the children were placed in the interim custody of PCDJFS. The children were adjudicated dependent pursuant to a stipulation. The dependency finding was based on a "need for services to address parenting issues and abandonment issues." A dispositional hearing was held on February 9, 2021, and the children were placed in the temporary custody of PCDJFS. A springing order issued at that time provided that the children would be returned to Duche's legal custody, with protective supervision, in 30 days. On February 25, 2021, PCDJFS filed objections to the springing order as Duche had tested positive for methamphetamine and had violated a no contact order by having her boyfriend at her residence while the children were present.

{¶4} After multiple extensions of the temporary custody order, PCDJFS filed a Motion for Permanent Custody on November 10, 2022. It requested termination of parental rights since the father was incarcerated and Duche "has failed to adequately address her mental health, housing, and employment issues," was presently homeless, had tested positive for illicit substances, and had not completed her case plan objectives.

{¶5} A hearing on the motion for permanent custody was held on April 14, 2023. It was conducted jointly with a hearing on a separate legal custody case involving Duche's two other children. The following testimony was presented:

{¶6} Danielle Stropki, a PCDJFS caseworker, became involved with the family in November 2020. At that time, the children were removed from Duche's custody when a friend watching them for a weekend could no longer care for them and police could not locate Duche. The case plan required that Duche complete drug and alcohol and mental health assessments, participate in counseling services, comply with requests for drug screens, complete a parenting program, obtain an income, and maintain safe and stable housing. She was also to address any issues arising from prior endangering children charges in Summit County.

{¶7} After the dependency adjudication, the springing order was put in place and the children returned home on an extended visit. Shortly thereafter, in February 2021, PCDJFS filed a notice of objection given Duche's positive drug test and violation of an order that the children not have contact with her boyfriend. The children remained in the temporary custody of PCDJFS. In May 2021, Duche twice tested positive for methamphetamine. At the time of the case plan review in November 2021, Duche was in mental health counseling and had another positive drug screen. Stropki testified that Duche had completed both her drug and alcohol and mental health assessments.

{¶8} Kellan Towns, a PCDJFS caseworker, was assigned to the case from November 2021 until June 2022. According to Towns, she conducted "random" drug screens of Duche when she saw her for appointments. Towns testified that these were conducted about once a month "due to the fact that she was [also] doing screening with Compass Recovery" and Towns was "getting those reports." Duche did not complete many of the requested screens from Compass in March through May 2022. Towns confirmed that Duche tested positive for methamphetamine three times in 2021, but Duche denied usage and asserted that she tested positive because others in her apartment building were using methamphetamine. Duche did not comply with requests to confirm the results with a hair follicle test. Duche also refused three oral drug screen requests in 2021. Towns was asked if "at any point in time" did Duche begin screening negatively, to which Towns stated: "She did. There were frequent negatives." Towns testified that the last positive test by Duche in this case was March 30, 2022. Towns testified that, there had initially been times Duche did not come in for drug screens, so Towns began asking for verification for her unavailability (the date of this request is not clear from her testimony). After that request, apart from the hair follicle test, Duche provided doctor's notes or other documented justifications for not being able to timely complete drug tests. According to Towns, Duche did not refuse any tests requested by PCDJFS in 2022.

{¶9} According to Towns, Duche participated in counseling at both Compass Recovery and Coleman Health Services. She eventually began undergoing all counseling services at Compass for mental health and substance abuse. Towns discussed that Duche had been at risk of being discharged from these services for failing to attend some sessions. Towns testified that beginning in January 2022, meetings with Duche became difficult and she was non-compliant.

{¶10} Duche was consistent with her supervised visitation with the children. She also attended several extracurricular activities for her children, such as baseball games and a basketball game. During this time, J.A.G. was doing well in school but had tantrums after visitation on Tuesdays. Katie Miley, program manager at Place of Peace, had been supervising Duche's visits for about two years. Duche was always on time and came to all visitations. When staff asked Duche "not to say certain things to the children * * * in respect to coming home and time lines on that," Duche complied with these requests.

{¶11} Rachell Magrell, a PCDJFS on-going caseworker, began working with the family in July 2022. Although Duche was supposed to meet with Magrell monthly, Magrell met with Duche in July, September, and October but did not see her in August 2022 or November through January 2023. Magrell testified that she had difficulty getting responses to communications with Duche. Duche indicated she had difficulty scheduling meetings due to her work commitments.

{¶12} As to Duche's progress on the case plan, Magrell testified that Duche had worked as a manager at Family Dollar since April 2022. Magrell believed she could care for the children with the income made at this job. Duche had been in multiple apartments during the pendency of this matter and Magrell had difficulty arranging visits to those apartments. However, Duche obtained housing in February 2023, which Magrell visited. Magrell described the residence as appropriate: "It's a large, three bedroom house with a fenced in backyard. The floors are good. The rooms are good. She has beds for the children."

{¶13} Magrell explained that Duche tested clean for drugs in July 2022 and her tests were negative for over a year. Duche submitted to all random and/or requested drug screens from the time Magrell took over the case in June, and tested negative as recently as February 2023, although screens were not completed in the months they did not meet. Magrell explained that Duche had been receiving treatment from both Coleman and Compass and, in August 2022, she decided to receive services from Compass only, attending appointments weekly. During that time, Duche was being screened for drug use by Compass and all tests were negative. Duche stopped going to Compass in November 2022, saying that she worked too much. According to Magrell, Duche did not complete a parenting program as required by her case plan.

{¶14} Magrell characterized the relationship between G.C.M.G. and Duche as a "love-hate" relationship "because of the things she has put him through" but he loves her. He "bounces back and forth from, I'd rather be adopted than go home to I want to be with my Mom, which is where he's at right now." J.A.G. is nonverbal but has a bond with Duche. Both children are bonded with each other and their other siblings. J.A.G. has had multiple placements but was in a foster home at the time of the hearing. G.C.M.G. had three or four placements and was in a group home at the time of the hearing.

{¶15} Bradford Price, a counselor at Compass Recovery, worked with Duche from December 2021 to November 30, 2022, and believed she made positive progress through her treatment. While she initially had some urine drug screens that tested positive for THC, her last 21 drug screens were negative for all mood-altering chemicals. She engaged well in her treatment and reviewed strategies to modify her behavior and make positive decisions, which led to her choice to live in a home in a better neighborhood. S...