In re B.S.

921 N.E.2d 320, 184 Ohio App. 3d 463
CourtOhio Court of Appeals
DecidedOctober 15, 2009
DocketNos. 92868, 92870, 92871, 92872 and 92880
StatusPublished
Cited by10 cases

This text of 921 N.E.2d 320 (In re B.S.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B.S., 921 N.E.2d 320, 184 Ohio App. 3d 463 (Ohio Ct. App. 2009).

Opinion

Kenneth A. Rocco, Presiding Judge.

{¶ 1} In these consolidated appeals, appellants B.M.,1 natural mother of the two subject children; N.S.,2 natural father of the child B.S.; and D.S.,3 natural father of the child D.M., each appeal from the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, to terminate his or her parental rights and to grant permanent custody of the children to the Cuyahoga County Department of Children and Family Services (“the agency”).

{¶ 2} B.M. presents three assignments of error. She claims that the juvenile court’s decision should be reversed because the evidence presented had not demonstrated (1) that permanent custody was in her children’s best interests, (2) that she had failed to remedy the conditions that caused her children’s removal from her home, or (3) that the agency had made reasonable efforts to reunify her with her children.

{¶ 3} N.S. presents four assignments of error. He claims that under federal law, the juvenile court lacked jurisdiction to proceed and that the court also applied the wrong standard of proof under either federal or state law. He further claims that his trial counsel provided ineffective assistance.

[468]*468{¶ 4} D.S. presents four assignments of error. He claims that the juvenile court failed to comply with notice requirements prior to proceeding with the action, that the court’s decision is unsupported by sufficient evidence, that the court acted improperly when it decided the agency’s motion for permanent custody as to two children at the same time, and that his trial counsel provided ineffective assistance.

{¶ 5} Upon a review of the record, this court notes that N.S. lacks standing to appeal the juvenile’s court’s decision as to D.M.; therefore, App. No. 92872 is dismissed. Furthermore, this court agrees with none of the appellants’ claims. Consequently, their assignments of error are overruled, and the juvenile court’s decision is affirmed.

{¶ 6} The record reflects that the agency initially sought predispositional temporary custody of D.M.4 on July 10, 2007. At that time, the child was approximately nine months old. Both B.M. and N.S., as putative father, stipulated to the need. Upon obtaining predispositional temporary custody of D.M., the agency immediately filed a motion for temporary custody.

{¶ 7} According to the affidavit of the agency’s social worker, Veronica Davis, due to B.M.’s use of drugs during her pregnancy, D.M. had been born at only 29 weeks of gestation “with multiple medical problems.” The child immediately had been transferred to a special children’s hospital, where he had remained. Since the time of his birth, the child had undergone four heart surgeries. Although he was ready for discharge, he required “multiple medications” and nourishment via a “feeding tube.”

{¶ 8} Davis averred that neither the mother, B.M., nor the putative father, N.S., was able to meet the child’s specialized medical needs, that neither of them had attended instruction for learning the specialized care the child required, that neither of them had an adequate source of income and stable housing, that both of them had engaged in domestic violence against each other, that both of them used drugs and alcohol “excessively,” and that neither of them had undertaken the recommended drug assessment or treatment.

{¶ 9} Davis further alleged that N.S. had failed to establish paternity. As a last point, Davis indicated that if N.S. were not the child’s father, the child’s natural father had failed to either establish paternity or to support, visit, or communicate with D.M. since his birth.

{¶ 10} On September 18, 2007, a few months after the agency obtained temporary custody of D.M., B.M. gave birth to her second son, B.S. This child, too, was born with medical problems; B.M. tested positive for cocaine use during [469]*469her pregnancy and at B.S.’s birth. The agency followed the same procedure with B.M.’s second child, i.e., first obtaining emergency custody, with B.M. and N.S. both stipulating to the need.

{¶ 11} At the emergency-custody hearing, the children’s guardian ad litem (“GAL”) asked B.M. and N.S., “[I]s there any Indian blood in the families?” Only N.S. responded. He first indicated that his “grandmother” was “full-blooded,” then changed his answer to “great-grandmother.” N.S. asserted that this relative had been born on a reservation.

{¶ 12} In reply to the court’s follow-up question as to “which tribe,” N.S. further stated that this relative was “Sioux.” The GAL told the court that with respect to D.M., she had been informed only that the child might have Cherokee blood. The GAL stated that because N.S. had never provided any indication that he had anything except Cherokee ancestors, all the previous custody notices had been sent to the Cherokee bands. N.S. indicated that he had Sioux ancestors on his “mother’s side” and promised to obtain the information.

{¶ 13} Both D.M. and B.S. were placed with the same foster family. The foster mother had been trained as a registered nurse.

{¶ 14} The record reflects that after the agency filed a motion seeking temporary custody of B.S., the juvenile court conducted a hearing on the motion, referred both B.M. and N.S. to the “drug court,” and continued the matter. The order was journalized on October 7, 2007.

{¶ 15} The drug court required both B.M. and N.S. to commit to taking steps for treatment. Both agreed to do so. However, the record reflects that each proved recalcitrant.

{¶ 16} On November 7, 2007, the agency filed an amended case plan for the family. To address substance-abuse and domestic-violence concerns, B.M. and N.S. agreed to “attend, participate in and successfully complete treatment and aftercare” and “to attend, participate in and complete a Domestic Violence program.” To address the children’s needs for a proper physical environment, B.M. and N.S. agreed to secure and maintain safe and stable housing and to establish financial resources to support the children.

{¶ 17} B.M. also agreed to complete a psychological evaluation. N.S. agreed to establish paternity of the two boys, and, if paternity was established, to pay child support. For its part, the agency indicated that it would secure the resources to enable B.M. and N.S. to comply and would monitor their progress.

{¶ 18} On November 28, 2007, the juvenile court conducted a hearing on the agency’s motion for temporary custody of B.S. After B.M. and N.S. admitted the allegations, the court entered an order finding the child to be neglected and [470]*470dependent and granting the agency’s motion. The order was journalized on December 13, 2007.

{¶ 19} On January 15, 2008, the drug court discharged both B.M. and N.S. for their failure to comply with its requirements. The cases were returned to the juvenile court “for review of Temporary Custody.”

{¶ 20} On March 13, 2008, the agency filed motions for permanent custody of both children. The affidavits accompanying the motions were nearly identical.

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Bluebook (online)
921 N.E.2d 320, 184 Ohio App. 3d 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bs-ohioctapp-2009.