In 2010, the Cuyahoga County Department of Child and Family Services (the County) filed a complaint against CD alleging neglect of her son KW. The complaint was based on the County’s concerns regarding KW’s health problems allegedly caused by his obesity. Unfortunately, CD agreed to a reduced charge of dependency, which placed KW under the protective supervision of the County. As a remedial measure, the County required CD to follow a specific plan that would aid KW in his weight loss. Not believing CD was following the plan, the County asked for and a magistrate granted on October 19, 2011 emergency temporary care and custody of KW to the County. Instead of placing KW in the care of a relative or family friend, the County removed him from his school, where he had been an honor student, and placed him in foster care.

Legal Theory

The removal of KW from his mother violated his and CD’s right to due process under the law. First, the County had an insufficient basis to remove KW from his mother. Second, the County violated Ohio law because removing KW from his school and family was not the least intrusive action it could have taken. Third, Ohio law stipulates that family services must first determine whether other members of the family are capable of taking in a child removed from their parents. Instead, the County immediately placed KW in foster care.

Status Update

We joined as co-counsel for CD & KW with the public defender juvi division. We filed an emergency motion on December 13, 2011 to terminate the County’s custody of KW alleging numerous violations by the County. The judge held a hearing on December 14, 2011 on our motion, and the parties reached an agreement that temporary custody of KW would go to his uncle after one-week of unsupervised visitation with KW’s mother, CD, for the holidays. The court’s journal entry stipulating these terms was vague and led to the County asserting that it could retain custody of KW for longer than was agreed. The questionable language stated that
KW was to be placed in the custody of his uncle at the end of the school semester, which ended January 20, 2012. We responded that the agreement was clear that KW was to be placed with his uncle after his holiday visit with CD. The court held a hearing and amended the journal entry to reflect the original agreement, which meant the uncle gained custody of KW beginning December 28, 2011. The County filed a motion on January 10, 2011 to transfer jurisdiction of the case to the county where KW currently resides with his uncle. We filed a motion in opposition on January 19, 2011. A hearing was held and KW was returned to CD’s custody on March 3, 2012, but KW remains under the protective supervision of the County. A status conference is scheduled for April 10, 2012 to determine whether the County’s protective supervision will be terminated. On May 10, 2012 the Court determined that the mother was complying with the case plan and making progress. Protective supervision was terminated and legal custody was restored to the mother. Mother and KW have moved to the State of Georgia. The former Guardian ad Litem filed a Motion for Relief of Judgment, objecting to the removal of the child from Ohio. We responded on June 27, 2012 with a Brief in Opposition to the Motion for Relief from Judgment. On July 3, 2012 the Court overruled the Guardian ad Litem’s motion. We do not anticipate any further activity in this case since the mother and KW are no longer in Ohio.

Date filed

December 8, 2011