In re A.H.

2021 Ohio 1577

IN THE MATTER OF: A.H.

Case No. 2020 CA 00072

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

May 4, 2021

JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case No. F 2018-0443

JUDGMENT: Vacated and remanded

APPEARANCES:

For Appellee - L.C.J.F.S.

WILLIAM C. HAYES

Licking County Prosecutor

PAULA M. SAWYERS

Assistant Prosecuting Attorney

20 S. Second Street, Fourth Floor

Newark, Ohio 43055

Guardian Ad Litem

SCOTT SIDNER

55 South Main Street, Suite C

Johnstown, Ohio 43031

For Appellant - Charles Holmes

JERMAINE L. COLQUITT

33 W. Main Street, Suite #109

Newark, Ohio 43055

For Mother - Noel Holmes

BONNIE VANGELOFF

P.O. Box 4174

6400 Emerald Parkway

Dublin, Ohio 43016

Hoffman, P.J.

{¶1} Appellant Charles Holmes ("Father") appeals the October 29, 2020 Judgment Entry entered by the Licking County Court of Common Pleas, Juvenile Division, which approved and adopted the magistrate's September 25, 2020 decision, recommending Father's parental rights with respect to his minor child be terminated, and permanent custody of the Child be granted to appellee Licking County Job and Family Services ("LCJFS").

STATEMENT OF THE FACTS AND CASE

{¶2} Father and Noel Holmes ("Mother")¹ are the biological parents of the Child. Permanent custody of Mother's three older children was granted to LCJFS in February, 2019. Father is the biological father of two of the older children.

{¶3} On July 2, 2018, the trial court granted an emergency ex parte order for removal of the Child. On the same day, LCJFS filed a complaint, alleging the Child was dependent due to Father and Mother's mental health and substance abuse issues. The Complaint further alleged Mother tested positive for THC at the Child's birth, Mother lied about being pregnant, neither parent was employed and did not have independent means to support the Child, and Father had moved out of state. In addition, the Complaint noted the concerns which led to LCJFS becoming involved with the three older children remained, to wit: substance abuse, mental health issues, domestic violence, and economic instability. The trial court granted emergency shelter care custody of the Child to LCJFS on July 3, 2018. The trial court appointed Attorney Scott Sidner as Guardian ad Litem for the Child.

{¶4} Following an adjudicatory hearing on September 4, 2018, the magistrate found the Child to be dependent. The trial court conducted semi-annual review hearings on October 25, 2018, and April 25, 2019, and maintained the status quo each time. LCJFS filed a motion for permanent custody on May 29, 2019. On August 14, 2019, Mother filed a motion to grant legal custody of the Child to maternal grandparents or, in the alternative, maternal great aunt and uncle.

{¶5} The magistrate conducted the permanent custody hearing on July 6, September 22, and September 23, 2020.

{¶6} At the close of evidence on the first day of the hearing, Father made an oral motion pursuant to the Interstate Compact on the Placement of Children ("I.C.P.C."), requesting LCJFS initiate the I.C.P.C. study of Father's home in North Carolina. The magistrate scheduled the motion for a "non-oral hearing to allow any party to file a response should they wish to do so." August 5, 2020 Magistrate's Decision.

{¶7} LCJFS filed a memorandum contra on July 10, 2020, arguing the motion was untimely. LCJFS explained, before another state approves an I.C.P.C., an agency must gather "a significant amount of demographic information from the party who intends to accept placement." July 10, 2020 Memorandum Contra to Father's Oral Motion for ICPC at 1, unpaginated. LCJFS detailed the efforts made by the social worker to obtain the necessary information from Father and Father's brother. The GAL filed a response on July 10, 2020, also arguing Father's request was untimely. The GAL noted: "The need for an ICPC in this case is not a matter newly discovered by Father. In fact, the undersigned has mentioned that no ICPC had been requested by Father it [sic] in previous GAL Reports in this case and/or the siblings' case." July 10, 2020 GAL's Response to Father's Request for ICPC at 2. The GAL added Father testified about the ICPC requirement during the February, 2019 permanent custody trial involving the Child's siblings.

{¶8} Via Decision filed August 5, 2020, the magistrate denied Father's motion for an I.C.P.C. home study. The magistrate found "this request has simply been made too late." Id. at 2, unpaginated. The magistrate added, "While [counsel for Father] did seek to initiate a home study for his client much earlier in the case, his efforts were thwarted by his client's brother, and it appears by his client as well." Id. The magistrate also noted the matter had been pending over two years and granting the request would delay permanency for the Child. Id.

{¶9} Rebecca Inboden, an on-going social worker, testified she was assigned to the family in May, 2017, when the three older children were placed in the custody of LCJFS. Inboden indicated Father and Mother are legally married, but are separated. The Child was born during the pendency of the case involving the older children. At the time of the Child's birth, the concerns which resulted in the removal of the older children remained, including substance abuse, mental health, domestic violence, financial stability and housing. Father and Mother were non-compliant with case plan services, not engaging in any services, and failing to address any of the issues of concern.

{¶10} Inboden met with Mother at the hospital on July 2, 2018, and reviewed the case plan with her. Mother had denied being pregnant when Inboden asked her during a conversation on May 9, 2018. Inboden did not learn of Mother's pregnancy until the Child was born. Father had moved to North Carolina the week prior to the Child's birth. During a telephone conversation on June 21, 2018, Father informed Inboden he had moved and he and Mother were separating. Father did not disclose Mother's pregnancy during the conversation.

{¶11} A copy of the case plan was mailed to Father. Father's case plan included mental health and substance abuse services, obtain and maintain stable housing and employment, and address domestic violence issues. Inboden stated Father's income appears to be sufficient as he receives monthly VA benefits and is employed at a grocery store earning approximately $14.50/hour. Inboden did not have verification of Father's residence, but it was her understanding Father was residing with his brother.

{¶12} During the course of the case involving the older children, Father had positive drug screens, the majority of which were for marijuana. Father completed an intake at the Licking County Alcohol Prevention Program ("LAPP") in September, 2017. Father did not follow through with the recommended services. He completed another assessment at LAPP in February, 2020. Father was advised to follow the recommendations from the 2017 intake. At the time of the hearing, Father had not followed through with the recommendations. Father had negative drug screens in 2020.

{¶13} Inboden noted it had been relatively difficult to assist Father with the case plan due to the physical distance. Her primary means of communicating with Father was through email. Inboden expressed concerns about Father's ability to parent the Child "because there are things I can't - I can't verify with father at this point." Transcript July 6, 2020 Hearing at 21. Father participated in parenting classes during the case involving the older children.

{¶14} Inboden stated Father's visits with the Child "go really well." July 6, 2020 Tr. at 28. Father is appropriate and engaged. Although the Child appears happy to see Father, Inboden would not go so far to say the Child is bonded with Father. Father's attorney advised Inboden Father's brother was interested in being considered as a potential placement option for the Child. In September, 2019, Inboden contacted Father's brother, who lives in North Carolina. Inboden described Father's brother as "caught off guard by my call." Id. at 34. Father's brother told Inboden, "I don't know what I could tell you." He indicated he needed to call Inboden back and would do so within 30 minutes. Inboden never received a return call.

{¶15} With respect to the best interest portion of the hearing, Inboden testified the Child is two years old. He is placed in a foster home with two of his older brothers, and has been in the home since his initial removal from Parents' care. The Child receives full-time services through Early Head Start due to speech delays. The Child is well adjusted and is bonded with his biological brothers, his foster siblings, and his foster parents. All of his needs are being met. The foster parents are in the process of adopting the two older children and are interested in adopting the Child. Inboden indicated alternative relative placement was not approved by LCJFS due to various concerns.

{¶16} Nicole McCullough testified on the final day of the hearing. McCullough was assigned to the family as the ongoing social worker in August, 2020, after Inboden left LCJFS. McCollough met Parents following the July 6, 2020 hearing. Thereafter, Father texted McCollough with his contact information and address. In an August 21, 2020 email, McCullough asked Father to send an updated paystub, which he did on September 6, 2020. McCullough asked Father if he had completed the LAPP recommendations from his initial intake, which was the recommendation following his February, 2020 mental health assessment. Father indicated the recommendations were no longer valid. McCullough described Father's visits with the Child as appropriate, and indicated Father loved the Child. McCullough had not heard from Father's brother. Father did not provide McCullough with any photographs of his residence. F...