In re L.R.B. , 2020 Ohio 6642 ( 2020 )


Menu:
  • [Cite as In re L.R.B., 2020-Ohio-6642.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    IN RE: L.R.B, N.J.B. and J.B.B.               :
    :
    :   Appellate Case No. 28826
    :
    :   Trial Court Case Nos. 2016-1686,
    :   2016-1687, 2018-0065
    :
    :   (Appeal from Common Pleas Court-
    :   Juvenile Division)
    :
    ...........
    OPINION
    Rendered on the 11th day of December, 2020.
    ...........
    MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
    Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
    Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
    Attorney for Appellee, Montgomery County Children Services
    KAREN S. MILLER, Atty. Reg. No. 0071853, P.O. Box 341274, Beavercreek, Ohio 45434
    Attorney for Appellant, Mother
    .............
    WELBAUM, J.
    -2-
    {¶ 1} Appellant Mother appeals from a juvenile court judgment awarding
    permanent custody of her minor children, N.J.B., L.R.B, and J.B.B., to Montgomery
    County Children Services (“MCCS”). The children’s father has not appealed.
    {¶ 2} In support of her appeal, Mother asserts that MCCS failed to prove by clear
    and convincing evidence that an award of permanent custody was in the children’s best
    interest. For the reasons discussed below, we conclude that the trial court did not abuse
    its discretion by finding that a grant of permanent custody to MCCS was in the children’s
    best interest. The court's findings were supported by competent, credible evidence, and
    there was clear and convincing evidence that granting permanent custody to MCCS was
    in the children’s best interest. Accordingly, the judgment of the trial court will be affirmed.
    I. Facts and Course of Proceedings
    {¶ 3} The history of this case began with events that occurred in 2011, when a
    child of Mother, D.T., who had tested positive at birth for drugs not prescribed to Mother,
    died under suspicious circumstances. See Montgomery J.C. No. 2016-1687, March 16,
    2016 Dependency Complaint, p, 1.1 D.T. was admitted to Dayton Children’s Hospital
    (“DCH”) when he was seven weeks old, with injuries consistent with physical abuse. Id.;
    Transcript of Proceedings (March 18, 2019 Permanent Custody Hearing) (“Tr.”), p. 28.
    {¶ 4} Dr. Lori Vavul-Roediger, an expert in pediatric child abuse, treated D.T.
    during his hospitalization.
    Id. at
    p. 12, 28, 
    and 48. Dr. Roediger found that D.T. had
    acute subdural hemorrhages and bilateral, multilayered retinal hemorrhages in both eyes.
    1 Because there are three cases, there are pleadings for each child. However, the
    pertinent records are identical. As a result, we will refer to the docket and pleadings in
    N.J.B.’s case (Montgomery J.C. No. 2016-1687) unless otherwise indicated.
    -3-
    Her diagnosis was that D.T. had been physically abused, as his injuries were consistent
    with head trauma.
    Id. at
    p. 48-49. 
      Unfortunately, D.T. became septic during his
    hospitalization and died.
    Id. at
    p. 28 
    and 49.   Although Mother had no explanation for
    the child’s injuries, no criminal charges were filed. However, abuse was suspected.
    Dependency Complaint at p.1.
    {¶ 5} In March 2016, Mother appeared again at DCH with another child, L.R.B.,
    who was four weeks old. Tr. at p. 13 and 15. Dr. Roediger again was asked to consult,
    based on concerns over possible head trauma due to physical abuse.
    Id. at
    p. 14.
    
    According to the records, L.R.B. had tested positive for opiates at birth, had not been
    seen by a doctor since birth, and was not current on any immunizations.
    Id. at
    p. 172
    
    and May 11, 2016 Guardian Ad Litem (“GAL”) Report, p. 3.
    {¶ 6} When L.R.B. was brought to the hospital, medical personnel observed that
    bruising on her forehead and head and large areas of bruising on her buttocks were
    covered in a foundation or makeup-type product. Tr. at p. 52-53. Mother initially denied
    putting makeup on the bruises, but later admitted to a caseworker that she had done it
    because of what had happened with D.T. May 11, 2016 GAL Report at p. 3; Tr. at p.
    170, 175; Dependency Complaint at p. 1.
    {¶ 7} On examining L.R.B., Dr. Roediger noted acute intracranial hemorrhages
    and areas of ischemic (lack of blood flow) injury to L.R.B’s brain. It was also noted on
    admission and on the doctor’s exam that L.R.B. had a very large area of extensive
    bruising on her buttock and lower lateral thorax as well as on the side of her head. Tr.
    at p. 17. Dr. Roediger concluded that L.R.B. had been physically maltreated and that
    the injuries were inflicted, or nonaccidental, trauma.
    Id. Specifically, an extensive
                                                                                            -4-
    medical evaluation indicated no type of genetic abnormality or blood disorder that would
    have led to the injuries.
    Id. at
    p. 17-18. 
      Mother also had no explanation for the child’s
    injuries, and denied any injuries, accidents, or falls.
    Id. at
    p. 54 
    and 169. Dr. Roediger
    stressed that a child of L.R.B.’s age (four weeks) could not possibly have inflicted these
    injuries on herself.
    Id. at
    p. 32.
    
    {¶ 8} At the time Mother brought L.R.B. to the hospital, Mother, L.R.B., and N.J.B.
    (born in December 2013) lived in a home with the maternal grandparents.
    Id. at
    p. 170;
    
    Dependency Complaint at p. 1. Mother was the primary caregiver, but she stated that
    the grandfather was the last one to change L.R.B.’s diaper before she was brought to the
    hospital. MCCS later substantiated abuse concerning both Mother and the grandfather.
    Id. at
    p. 170-171.
    
    {¶ 9} L.R.B. was hospitalized for about a week for her trauma.
    Id. at
    p. 59. 
    A few
    days after the hospital admission, MCCS filed dependency complaints regarding L.R.B.
    and N.J.B., as well as motions and affidavits for interim temporary custody at an ex parte
    hearing. E.g. Dependency Complaints. The complaints alleged that the children lacked
    proper parental care due to the mental or physical condition of their parents and that the
    children’s condition or environment warranted assumption of their guardianship by the
    State.
    Id. at
    p. 1.
    
    {¶ 10} The trial court granted temporary custody to MCCS on March 22, 2016, and
    the matter was set for an adjudicatory and dispositional hearing on May 11, 2016.
    Following the May hearing, the court filed an order on May 16, 2016, finding the children
    dependent and granting MCCS temporary custody until March 16, 2017, unless MCCS
    filed a motion before that date. Magistrate’s Decision and Judge’s Order, p. 2. The
    -5-
    court also approved the initial case plan MCCS had filed and granted Mother supervised
    visitation.
    Id. {¶ 11} The
    initial case plan contained the following requirements: Mother was to
    identify a “sober responsible adult to supervise her children to reduce any chances of
    abuse and neglect”; complete parenting/psychological, drug/alcohol, and mental health
    assessments and follow any recommendations, which “may include individual/group
    counseling and random drug testing”; secure employment and maintain housing; and sign
    releases. Case Plan, p. 5. Father was not involved to a great degree at the time the
    case plan was implemented, but the plan stated he would be given goals once he became
    involved.
    Id. Mother was also
    given visitation with the children for two hours no less
    than two times per week.
    Id. at
    p. 6.
    
    {¶ 12} In January 2017, MCCS filed a motion and affidavit for a first extension of
    temporary custody, noting that Mother had made some progress on the case plan.
    Mother was employed, had recently obtained housing, and had been released from
    substance abuse treatment. See Motion for Extension of Temporary Custody, p. 2. The
    trial court granted the first extension on February 1, 2017, and ordered that Father be
    added to the plan because he had recently established paternity. Magistrate’s Interim
    and Final Order, p. 2. In addition, the court set a dispositional hearing for April 3, 2017.
    Id. at
    p. 3. 
         After Father was added to the plan, his goals included completing a
    drug/alcohol assessment, following recommendations of the assessment, securing
    housing and income, maintaining contact with MCCS, and signing releases. Amended
    Case Plan, p. 4.
    {¶ 13} In March 2017, the GAL noted that no objective testing had been done
    -6-
    concerning Mother’s mental health status or needs and no mental health counseling had
    occurred.    At the GAL’s request, MCCS scheduled a parenting/psychological
    assessment for Mother on May 2, 2017 with Dr. Lilley. GAL Report, p. 2, and May 13,
    2017 Semi-Annual Review (“SAR”), p. 3. This goal was added to Mother’s case plan in
    April 2017. Amended Case Plan, p. 1.
    {¶ 14} In July 2017, MCCS moved for a second extension of temporary custody,
    and it was approved on August 2, 2017. In September 2017, a SAR indicated that
    Mother had been employed full-time since the beginning of 2017, had begun having two-
    hour in-home visits on Fridays with N.J.B. and L.R.B., and had completed a psychological
    evaluation. However, MCCS was still awaiting results of the evaluation. SAR, p. 7.
    {¶ 15} In November 2017, the GAL filed a report noting that “Dr. Lilley diagnosed
    mother with adjustment disorder with depressed mood; opioid-related disorder by history;
    and R/O personality disorder with dependency and narcissistic features.” November 16,
    2017 GAL report, p. 4-5. The doctor’s report further found that Mother “ ‘has a limited
    frustration tolerance and she can respond impulsively particularly during times of stress.
    Her egocentrism leads to focus on meeting her own needs before those of others. She
    tended to endorse parenting approaches that were rigid and restrictive, which can
    result in disciplinary practices that are overly harsh and punitive.’ ” (Emphasis sic.)
    Id. at
    p. 5, 
    quoting Dr. Lilley’s report. The GAL was particularly concerned by this latter
    finding, due to the history of the case.
    Id. {¶ 16} Dr.
    Lilley recommended gradual increases in Mother’s parenting time prior
    to reunification and noted that Mother needed a structured care plan for the children when
    she was at work.
    Id. In addition, the
    GAL noted that: “Dr. Lilley recommended
    -7-
    counseling for mother focused on parenting; and parenting classes focused on children
    in the pre-school period and those with oppositional behaviors.          Finally, mother is
    encouraged to establish a relationship with a therapist with expertise in opioid use
    disorder, due to the anticipated stresses and challenges mother will experience in
    parenting young children combined with N.[J.]B.’s oppositional tendencies.”
    Id. {¶ 17} In
    the report, the GAL also said, “Due to the history of two of mother’s
    children experiencing unexplained accidental head trauma with subdural hematomas, I
    have serious concerns for the long-term safety of these children if reunited, despite Dr.
    Lilley’s findings and mother’s efforts regarding the case plan.”
    Id. at
    p. 6.
    
    {¶ 18} Following a dispositional hearing on November 7, 2017, the court filed an
    order granting a second extension of temporary custody.           In the order, the court
    observed that Mother had made significant progress on other objectives in her case plan,
    but had not completed the recommendations in Dr. Lilley’s report. The court then set an
    annual review hearing for February 21, 2018. Magistrate’s Decision and Judge’s Order,
    p. 2.
    {¶ 19} On November 21, 2017, Mother gave birth to J.B.B., but she concealed the
    birth from MCCS. After receiving information about the birth on December 15, 2017,
    MCCS spoke to Mother to determine whether she, in fact, had a new baby. At that point,
    Mother denied both being pregnant and giving birth to a child. After MCCS called Mother
    again on December 18, 2017, Mother admitted that she had given birth. MCCS was then
    able to visit the next day and see the child.         Montgomery J.C. No. 2018-0065,
    Dependency Complaint, p. 1. On January 1, 2018, MCCS filed a dependency complaint
    concerning J.B.B.
    Id. -8-
    {¶ 20} Despite having initially concealed J.B.B.’s birth, Mother began cooperating
    with MCCS. In February 2018, MCCS filed a motion and affidavit asking the court to give
    legal custody of all three children to Mother, with protective supervision to MCCS,
    because Mother was complying with her case plan objectives. See Montgomery J.C.
    No. 2016-1687, MCCS Motion for Legal Custody to Mother, p. 2.            Although Mother had
    not yet completed her case plan objectives, MCCS was concerned about the fact that
    shuffling the children between their foster home and Mother was detrimental and was
    causing behavioral concerns, especially for N.J.B. Tr. at p. 156-157 and 194. That
    factor pushed MCCS to move forward with returning custody to Mother.
    Id. at
    p. 157.
    
    {¶ 21} On February 21, 2018, the trial court granted Mother temporary custody,
    with interim protective services being given to MCCS. See Magistrate’s Interim Order
    and Decision, p. 4. Additionally, the court granted Father visitation, with Mother or a
    person chosen by Mother to monitor the visit.
    Id. at
    p. 3. 
      The court also set a
    dispositional hearing for April 27, 2018.
    Id. at
    p. 5.
    
    {¶ 22} In March 2018, the case was transferred to a new caseworker, Robert Brun.
    Tr. at p. 81. At the time, an important objective was to have full-time protective daycare
    approved by the time the children were reunited with Mother in February 2018. This was
    significant and was on the case plan because N.J.B.’s behavior needed to be treated.
    MCCS also wanted Mother to have a break from N.J.B.’s behavior and to have the
    children in a routine and a structured environment while she worked.
    Id. at
    p. 98 
    and
    193. Before the case was transferred to Brun, the prior caseworker called the Job Center
    and verified that everything was in place for Mother to use the protective daycare.
    Id. at
    p. 190 
    and 193. All Mother needed to do was to select the daycare she wanted to use.
    -9-
    Id. at
    190.
    
    {¶ 23} Another goal was for N.J.B. to continue in counseling, but that did not occur.
    Id. at
    p. 99. 
    Mother also failed to follow through with Addiction Services, despite several
    attempts by that agency to contact Mother before April 2017.
    Id. at
    p.135 and 140.
    {¶ 24} After the hearing on April 27, 2018, the trial court granted legal custody of
    N.J.B. and L.R.B. to Mother and ordered that legal custody of J.B.B. remain with her.
    Magistrate’s Decision and Judge’s Order, p. 2. The court noted that Mother had made
    significant progress and that Father had not.
    Id. MCCS was awarded
    protective
    supervision for 12 months.
    Id. at
    p. 3. 
    The court stressed, however, that:
    Historically,   one    young     child      died   under   suspicious
    circumstances and one other young child sustained significant
    injuries while in the custody of the mother.              The Court finds it
    necessary that the mother comply with the orders in this case to
    ensure the safety of the children. The mother has made significant
    progress in this case and the Court wants to ensure that the mother
    has services in place to assist the mother to maintain the children in
    her home.
    (Emphasis sic.)
    Id. {¶ 25} Due
    to these concerns, the court specifically stated in the order granting
    Mother legal custody that Mother must do three things within 30 days: (1) put counseling
    in place for N.J.B.; (2) comply with Addiction Services or a like program for an assessment
    and follow all recommendations; and (3) complete the process of obtaining protective day
    care for the children. Magistrate’s Decision and Judge’s Order at p. 3. The court further
    -10-
    said that if Mother failed to comply within 30 days, MCCS was to remove the children and
    make a filing with the court concerning the removal or request for removal.
    Id. {¶ 26} Although
    Mother had the children in her custody from February 2018
    through most of July 2018, she did not accomplish the three items the court ordered. Tr.
    at p. 99, 128, 149. Consequently, MCCS filed a motion and affidavit with the court on
    July 24, 2018, asking for temporary custody with an interim order. See July 24, 2018
    Motion and Affidavit for Temporary Custody. MCCS asked for an interim order to protect
    the children's safety and because Mother had failed to comply with court orders. In
    addition to Mother's failure to comply, the affidavit also noted that the maternal
    grandparents, who lived with Mother, had been involved in a domestic violence incident
    for which the police had been called to the home.
    Id. at
    p. 3.
    
    {¶ 27} The next day, on July 25, 2018, MCCS filed another motion asking for ex
    parte temporary custody.     This was because the maternal grandmother had been
    charged with petty theft, possession of drugs, and possession of criminal tools.      In
    addition, the maternal grandfather had been charged with possession of criminal tools
    and petty theft. July 25, 2018 Motion and Affidavit for Interim Temporary Custody at an
    Ex Parte Hearing, p. 3.
    {¶ 28} After the trial court granted the ex parte motion on July 25, 2018, MCCS
    removed the children that day and took them to the home of their prior foster parents.
    That evening, when the foster mother gave L.R.B. a bath, she noticed multiple bruises.
    See September 5, 2018 GAL Report, p. 1; Tr. at p. 221. L.R.B. told the foster mother
    that “mommy kicked me in the bed,” but N.J.B. “spontaneously claimed ‘no, she didn’t,
    she kicked you in the bathtub.’ ” GAL Report at p. 5. The next day, the foster mother
    -11-
    contacted the MCCS nurse and notified Mother’s caseworker about the bruises. Tr. at
    p. 221. On July 27, 2018, the foster mother took L.R.B. to the foster care clinic.
    Id. {¶ 29} Dr.
    Roediger once again examined L.R.B., on July 27, 2018. The exam
    took place at DCH’s foster and kinship program, which functions as a primary care office
    for children who are in foster or kinship care. Tr. at p. 19. During her examination, Dr.
    Roediger found the following injuries to L.R.B.: multiple areas of skin trauma, including
    pattern bruises that were grab marks on L.R.B.’s face, thighs, and lower ankles; a very
    large, healing laceration on the forehead; large overlapping bruises on the upper hip and
    lateral buttock; a bruise on the right inner calf; a bite mark on the right arm; a half-
    centimeter circular brown bruise on the top of the left foot; a .2 centimeter, fading
    brown/violaceous bruise in the nail bed of the right middle finger; a large purple bruise at
    the base of the nail bed on the right great toenail; and bruising to a few other toenails.
    Tr. at p. 21-23 and 33. Dr. Roediger stated that, while it is fairly normal for toddlers to
    have bruises, “[L.R.B.] had an extensive number of bruises on various body surfaces,
    especially areas that aren’t typical for active, busy toddlers.”
    Id. at
    p. 23.
    {¶ 30} Based on her prior clinical experience with L.R.B., Dr. Roediger knew the
    child had no underlying bleeding disorder.
    Id. She also knew
    from the foster mother,
    who had cared for L.R.B. from March 2016 until early 2018, that there were no concerns
    about L.R.B. having extensive bruising while in her care.
    Id. at
    p. 23-24.       Furthermore,
    during the examination, when the doctor pointed to the large indentation on the child’s
    head and asked how she got it, L.R.B. said, “Mommy hurt me.”
    Id. at
    p. 24.          When Dr.
    Roediger also pointed to L.R.B.’s finger, where she had unusual bruising over the lower
    portion of her nail bed, and asked what had happened to her finger, L.R.B. again said,
    -12-
    “Mommy hurt me.”
    Id. Although the doctor
    attempted to ask L.R.B. about her other
    injuries, L.R.B. “became distracted, got on the floor, and started playing with another child
    who was present.”
    Id. at
    p. 24-25.     In view of her clinical findings, Dr. Roediger
    diagnosed suspected child abuse.
    Id. at
    p. 25.
    {¶ 31} Dr. Roediger continued to care for L.R.B. after she was removed from
    Mother’s home, and noticed a difference in L.R.B. both emotionally and physically.
    Id. at
    p. 26. After L.R.B. was removed, she did not have any areas of extensive bruising
    and there were no concerns about atypical injuries, even though L.R.B. clearly was an
    active, busy toddler.
    Id. {¶ 32} Dr.
    Roediger further stated that:
    [L.R.B.] has shown a dramatic, unbelievable improvement in her
    behavioral and emotional state. The little girl, * * * when I saw her two days
    after she was removed in July of 2018 was very anxious, very phobic,
    repeatedly asking to utilize the bathroom for fear she would wet her pants
    and be in trouble or be hurt. She must have left the room multiple times
    asking repeatedly to go potty, very afraid that she would wet her Pullup, just
    exorbitantly fearful.
    Tr. at p. 27.
    {¶ 33} On July 25, 2018, the day the court granted MCCS’s ex parte custody, the
    court also set a shelter care hearing for July 26, 2018. Judge’s Order, p. 1. Following
    the shelter care hearing, the court granted MCCS temporary custody, noting that Mother
    had not complied with court orders because she had failed to engage N.J.B. in counseling
    services, failed to actively participate in Addiction Services, and failed to take the children
    -13-
    to protective daycare. The court also noted that Mother refused to submit to a random
    drug screen when requested and that criminal activity by the grandparents had occurred.
    Magistrate’s Interim Order, p. 2. A dispositional hearing was set for September 10, 2018.
    Id. at
    p. 3.
    
    {¶ 34} Before the dispositional hearing occurred, the GAL filed a report, which
    included a discussion of the physical abuse of L.R.B. and recommended that temporary
    custody be given to MCCS. See September 5, 2018 GAL Report. At the dispositional
    hearing, the court granted MCCS temporary custody until July 25, 2019, unless MCCS
    filed a motion before that date. The court further stated that Mother was not to have any
    contact with the children except through supervised visitation.    September 10, 2018
    Magistate’s Decision and Judge’s Order, p. 2. MCCS then filed a motion and affidavit
    for permanent custody on November 16, 2018.
    {¶ 35} Due to L.R.B’s hysterical reactions at the prospect of visiting Mother,
    visitation with Mother did not take place after September 24, 2018. MCCS also filed to
    terminate Mother’s visitation. See March 14, 2019 GAL Report, p. 3. In December
    2018, the parties agreed to continue the motion to suspend Mother’s parenting time and
    all other motions until the dispositional hearing on permanent custody, which was set for
    March 18, 2019. See December 12, 2018 Magistrate’s Interim Order.
    {¶ 36} On March 14, 2019, the GAL filed a report recommending that the court
    grant permanent custody to MCCS. See GAL Report. Mother then filed a motion on
    March 15, 2019, asking the court to award her legal custody. A few days later, the trial
    court held the permanent custody hearing as scheduled.
    {¶ 37} At the hearing, MCCS presented testimony from these individuals: (1) Dr.
    -14-
    Roediger, who testified about the abuse to L.R.B.; (2) a therapist who had worked with
    both N.J.B. and L.R.B. to address behavioral issues; (3) the current MCCS caseworker
    for the family; (4) an MCCS transportation driver who testified about L.R.B.’s behavior
    when faced with being transported to visits; (5) a foster parent of the children; (6) an
    MCCS caseworker assigned to investigate the 2016 abuse of L.R.B.; (7) another MCCS
    caseworker assigned to investigate the 2018 abuse of L.R.B.; and (8) an MCCS
    caseworker assigned to the case between mid-August 2017 and March 2018. Mother
    presented her own testimony and that of the maternal grandparents. Father did not
    appear for the hearing.
    {¶ 38} After all the evidence had been presented, the GAL told the court that his
    opinion as to permanent custody was unchanged. Tr. at p. 260-261. Subsequently, on
    April 15, 2019, the magistrate filed a decision awarding permanent custody to MCCS,
    denying Mother’s motion for legal custody, and suspending Mother’s visitation with L.R.B.
    Montgomery J.C. No. 2018-0065, April 15, 2019 Magistrate’s Decision and Judge’s
    Order, p. 9.2 Mother then filed objections to the magistrate’s decision on April 23, 2019.
    {¶ 39} In June 2019, MCCS filed a motion to suspend the parents’ visitation with
    N.J.B. and J.B.B. due to Mother’s aggressive behavior toward MCCS staff (which had to
    call the police into visitation on more than one occasion), Mother’s threats to the
    caseworker, which caused him to file a police report, Mother’s inappropriate remarks to
    the children about returning home and not having to listen to others, and the detrimental
    effect of visitation on the children. Father was also visiting only sporadically and did not
    try to correct Mother’s behavior when he was there. Montgomery J.C. No. 2016-1687,
    2   A copy of this decision was not in N.J.B.’s file.
    -15-
    June 17, 2019 Motion and Affidavit to Suspend Mother and Father’s Visitation, p. 3.
    {¶ 40} In July 2019, the GAL filed a report again recommending that permanent
    custody be granted to MCCS. In addition, the GAL recommended that the motion to
    suspend visitation should be granted pending a ruling on the permanent custody
    objections. July 8, 2019 GAL report, p. 6. The trial court then suspended Mother’s
    visitation. The court did not suspend Father’s visitation, but stated that visitation would
    be suspended if Father failed to appear for three consecutive visits. July 8, 2019 Judge’s
    Order, p. 1-2.
    {¶ 41} After Mother filed supplemental objections and MCCS replied, the trial court
    issued a decision overruling the objections. The court then granted permanent custody
    to MCCS and terminated the parental rights of both Mother and Father. May 26, 2019
    Judge’s Final Appealable Order, p. 11. Mother timely appealed from the judgment on
    June 11, 2019. However, Father did not appeal.
    {¶ 42} With this background in mind, we will consider Mother’s assignment of error.
    III. The Award of Permanent Custody
    {¶ 43} Mother’s sole assignment of error states that:
    MCCS Failed to Prove by Clear and Convincing Evidence That
    Permanent Custody Was in the Minor Children’s Best Interest.
    {¶ 44} Under this assignment of error, Mother raises, with respect to all three
    children, that MCCS failed to prove that awarding permanent custody to the agency was
    in the children’s best interest. With regard to J.B.B., who had not been in MCCS custody
    for 12 or more months of a consecutive 22-month period, Mother also argues that the trial
    -16-
    court erred in concluding that J.B.B. could not be reunited with Mother within a reasonable
    period of time.
    {¶ 45} The law is settled that parents have essential and basic rights to conceive
    and raise children. However, these fundamental rights are not absolute. In re K.H., 
    119 Ohio St. 3d 538
    , 2008-Ohio-4825, 
    895 N.E.2d 809
    , ¶ 39; In re D.A., 
    113 Ohio St. 3d 88
    ,
    2007-Ohio-1105, 
    862 N.E.2d 829
    , ¶ 11.           In particular, “the government has broad
    authority to intervene to protect children from abuse and neglect.” In re C.F., 113 Ohio
    St.3d 73, 2007-Ohio-1104, 
    862 N.E.2d 816
    , ¶ 28.
    {¶ 46} “In a proceeding for the termination of parental rights, all the court's findings
    must be supported by clear and convincing evidence.” In re E.D., 2d Dist. Montgomery
    No. 26261, 2014-Ohio-4600, ¶ 7, citing R.C. 2151.414(E). (Other citation omitted.) The
    Supreme Court of Ohio defines “clear and convincing evidence” as “ ‘that measure or
    degree of proof which is more than a mere “preponderance of the evidence,” but not to
    the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases,
    and which will produce in the mind of the trier of facts a firm belief or conviction as to the
    facts sought to be established.’ ” In re K.H. at ¶ 42, quoting Cross v. Ledford, 161 Ohio
    St. 469, 
    120 N.E.2d 118
    (1954), paragraph three of the syllabus.
    {¶ 47} Decisions on terminating parental rights “will not be overturned as against
    the manifest weight of the evidence if the record contains competent, credible evidence
    by which the court could have formed a firm belief or conviction that the essential statutory
    elements for a termination of parental rights have been established.” (Citations omitted).
    In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. We review the court's
    judgment on this matter for abuse of discretion. See In re C.F. at ¶ 48 (applying an
    -17-
    abuse-of-discretion standard to the trial court's findings under R.C. 2151.414).
    {¶ 48} As pertinent here, R.C. 2151.414(B)(1) states that:
    Except as provided in division (B)(2) of this section, the court may
    grant permanent custody of a child to a movant if the court determines at
    the hearing held pursuant to division (A) of this section, by clear and
    convincing evidence, that it is in the best interest of the child to grant
    permanent custody of the child to the agency that filed the motion for
    permanent custody and that any of the following apply:
    ***
    (d) The child has been in the temporary custody of one or more public
    children services agencies or private child placing agencies for twelve or
    more months of a consecutive twenty-two-month period * * *.
    {¶ 49} In this case, there is no dispute that L.R.B. and N.J.B. were in MCCS’s
    temporary custody for 12 or more months of a consecutive 22-month period, and that
    MCCS only needed to establish that an award of permanent custody to the agency was
    in the best interest of these children. E.g., In re C.W., 
    104 Ohio St. 3d 163
    , 2004-Ohio-
    6411, 
    818 N.E.2d 1176
    , ¶ 21; In re E.S., 2d Dist. Clark No. 2016-CA-36, 2017-Ohio-219,
    ¶ 20.
    {¶ 50} As indicated, J.B.B. was not in MCCS’s temporary custody for the required
    time. In such circumstances, R.C. 2151.414(B)(2) provides that:
    With respect to a motion made pursuant to division (D)(2) of section
    2151.413 of the Revised Code, the court shall grant permanent custody of
    the child to the movant if the court determines in accordance with division
    -18-
    (E) of this section that the child cannot be placed with one of the child's
    parents within a reasonable time or should not be placed with either parent
    and determines in accordance with division (D) of this section that
    permanent custody is in the child's best interest.
    A. Placement with Either Parent within a Reasonable Time
    {¶ 51} We will address J.B.B.’s situation first, because with respect to J.B.B., a
    permanent custody award depended first on a finding that he could not or should not be
    placed with either parent within a reasonable time. In this regard, R.C. 2151.414(E)
    states that:
    In determining at a hearing * * * whether a child cannot be placed
    with either parent within a reasonable period of time or should not be placed
    with the parents, the court shall consider all relevant evidence. If the court
    determines, by clear and convincing evidence * * * that one or more of the
    following exist as to each of the child's parents, the court shall enter a finding
    that the child cannot be placed with either parent within a reasonable time
    or should not be placed with either parent.
    {¶ 52} After making this statement, R.C. 2151.414(E) then lists 16 factors for the
    court to consider. Notably, only one factor need be found for a court to make an adverse
    finding under R.C. 2151.414(B)(2). As a result, we will discuss only the factors the trial
    court found to exist, i.e., those in R.C. 2151.414(E)(1), (2), (3), (4), and (14).
    1. R.C. 2151.414(E)(1)
    -19-
    {¶ 53} R.C. 2151.414(E)(1) states that:
    Following the placement of the child outside the child's home and
    notwithstanding reasonable case planning and diligent efforts by the agency
    to assist the parents to remedy the problems that initially caused the child
    to be placed outside the home, the parent has failed continuously and
    repeatedly to substantially remedy the conditions causing the child to be
    placed outside the child's home. In determining whether the parents have
    substantially remedied those conditions, the court shall consider parental
    utilization of medical, psychiatric, psychological, and other social and
    rehabilitative services and material resources that were made available to
    the parents for the purpose of changing parental conduct to allow them to
    resume and maintain parental duties.
    {¶ 54} The trial court concluded that this factor applied to both parents, stating that
    the children “were removed from Mother’s care in part due to MCCS’s concerns regarding
    Mother’s significant substance abuse history. Mother has a history of significant drug
    use and throughout the life of this case was referred repeatedly to Addiction Services to
    address her substance abuse issues.         Mother has not fully engaged in drug and/or
    alcohol treatment and was terminated from Addiction Services due to her case being
    closed for lack of participation. Mother also refused to comply with drug screens as
    requested and does not feel that her drug use is an issue. In addition, Mother failed to
    address her mental health issues. Finally, both Mother and Father have failed to obtain
    and maintain housing or income.”       Montgomery J.C. No. 2016-1687, Judge’s Final
    Appealable Order (“Final Order”) at p. 6.
    -20-
    {¶ 55} According to Mother, the trial court wrongfully concluded that her case plan
    objectives were incomplete.       Mother asserts that her parenting and psychological
    assessment indicated she was capable of parenting her children. Mother also maintains
    that it stands to reason that she was capable of parenting her children because she and
    the children were, in fact, reunified.
    {¶ 56} We disagree. Our review indicates that competent and credible evidence
    existed to support the trial court’s finding under R.C. 2151.414(E)(1). The evidence was
    clear that Mother had failed to achieve the case plan objectives for housing and income.
    At the time of the permanent custody hearing, both Mother and Father were sharing a
    one-bedroom apartment with another person who had rented the apartment. Tr. at p.
    87-88. The premises were not suitable for one child, let alone three. Furthermore, while
    both parents claimed to be working, no verification was ever given to MCCS.
    Id. at
    p.
    90, 118-119, and 192. Mother suggests that MCCS could have found a way to verify her
    employment or income. However, this was not the duty of MCCS; Mother easily could
    have satisfied this minimal requirement.
    {¶ 57} Moreover, income verification was not the only issue. While Mother was
    employed off and on over the course of the case, she rarely stayed long at any job. In
    fact, Mother was employed at four different jobs in the year before the March 2019
    custody hearing, when she stated (without offering verification) that she had obtained a
    job at an auto parts factory. Tr. at p. 89-90, and 238. Nonetheless, even if verification
    had been provided, Mother had been in that job for only about a month before the hearing,
    and MCCS wanted Mother to establish at least a 90-day period of employment.
    Id. at
    p.
    90. Obviously, this had not occurred. More importantly, Mother never managed to
    -21-
    obtain and keep steady employment during the lengthy time the case was pending.
    {¶ 58} Mother also minimizes her substance abuse issues. She contends that
    she could re-engage in drug counseling and that a refusal to take one drug test should
    not be held against her. Mother’s Brief, p. 14. Again, the case was filed in 2016, and
    the permanent custody hearing was held in March 2019.         Mother had ample time to
    engage in drug treatment.
    {¶ 59} According to the evidence, Mother tested positive for opiates at all of her
    children’s births, except J.B.B.’s. Tr. at 172 and 254; March 16, 2016 Dependency
    Complaint.    The initial case plan filed in May 2016 revealed that both Mother and L.R.B.
    had tested positive for illegally obtained prescription drugs when L.R.B. was born in
    February 2016.      According to the plan, Mother was to complete the following
    assessments: parenting/psychological, drug/alcohol and mental health, and was to follow
    the recommendations of the assessments, which could include individual/group
    counseling and random drug testing. In addition, Mother was to secure employment and
    housing. Case Plan at p. 4. Around three years later, Mother did not have secure
    housing and did not have verified income. Tr. at p. 89-90.
    {¶ 60} Furthermore, Mother had refused to comply with drug counseling because
    she did not see any benefit and did not think she had a problem. See Tr. at p. 105
    (Mother refused a drug test in July 2018); Tr. at p. 239, 254, and 91-93 (Mother was
    referred to Addiction Services, did an intake in July 2018, and quit counseling in January
    2019 because she did not think she had an issue and did not see the point since MCCS
    had filed for permanent custody); March 14, 2019 GAL Report (Mother was referred to
    Family Treatment Court in July 2018 and was screened in August 2018; Mother declined
    -22-
    to participate because she did not believe she had a substance abuse problem); Tr. at p.
    112-113 (Mother tested positive for Suboxone on September 7, 2018, and had purchased
    the drug on the street); Tr. at p. 127-128, 183, 205; and July 25, 2018 MCCS Motion and
    Affidavit for Interim Temporary Custody at an Ex Parte Hearing (maternal grandparents,
    which whom Mother lived for most of the case, had a drug history, and maternal
    grandmother was arrested for drug possession and criminal tools. Maternal grandfather
    was also charged with petty theft and possession of criminal tools).
    {¶ 61} As a final point, the fact that reunification was allowed did not mean that
    Mother had met her goals or was capable of parenting her children. At the time the court
    allowed reunification, Mother had not achieved the case plan goals. Reunification was
    conditionally granted, however, because the children, and in particular N.J.B., were
    showing negative effects from being shuffled between the foster parents and Mother
    during the process of working towards reunification. Tr. at p. 156-157.   As previously
    indicated, Mother was required to do certain things within 30 days, and she failed to
    accomplish any of those items.
    {¶ 62} Furthermore, not only did Mother fail to accomplish her goals, one of the
    children was found to have again been abused while in Mother’s custody. There is
    simply no evidence that either Mother or Father remedied the conditions that caused the
    children’s removal; to the contrary, Mother and Father both “failed continuously and
    repeatedly to substantially remedy the conditions causing” the children to be placed
    outside their home. R.C. 2151.414(E)(1).
    2. R.C. 2151.414(E)(2)
    -23-
    {¶ 63} Although the above finding was sufficient to sustain the trial court’s
    judgment as to J.B.B., the court also found that Mother’s “ ‘[c]hronic mental illness, chronic
    emotional illness, intellectual disability, physical disability, or chemical dependency * * * ’
    is so severe that it makes her unable to provide an adequate permanent home for the
    children at the present time and within one year * * * .” Final Order at p. 6, quoting R.C.
    2151.414(E)(2).     Concerning this factor, the trial court again focused on Mother’s
    significant history of substance abuse, her failure to engage in treatment, and her failure
    to address mental health issues.
    {¶ 64} Based on our previous discussion, we find competent, credible evidence to
    support the trial court’s findings about Mother’s history of substance abuse and failure to
    engage in treatment. Concerning mental health issues, Mother was diagnosed in her
    youth as having bipolar disorder, attention deficit hyperactivity disorder, and obsessive
    compulsive disorder, and was on medication for those diagnoses.              She was not in
    treatment or on medication for those conditions when the children were removed in March
    2016. Tr. at p. 258; Dependency Complaint, Chris Deloia Affidavit, p. 1. Thereafter,
    Mother received a mental health evaluation from Dr. Lilley, who diagnosed her with
    “depressed mood; opioid-related disorder by history; and R/O personality disorder with
    dependency and narcissistic features.” Tr. at p. 94-95; November 11, 2017 GAL Report
    at p. 4-5.
    {¶ 65} Dr. Lilley recommended counseling focused on parenting and “parenting
    classes focused on children in the pre-school period and those with oppositional
    behaviors.”
    Id. at
    p. 5. 
    However, Mother did not engage in mental health treatment.
    See Tr. at p. 96 and 258. See also June 17, 2019 Motion and Affidavit to Suspend
    -24-
    Mother and Father’s Visitation, Robert Brun Affidavit, p. 1 (noting that “[a]lmost every
    week [at visitation], Mother acts aggressive, yells and curses at MCCS staff. MCCS staff
    or visitation staff have had to call the Sheriff’s deputy into the visitation on more than one
    occasion due to her behaviors. Mother has repeatedly threatened this caseworker to the
    point where this caseworker has had to file a police report against Mother. Mother also
    has mental health diagnoses and Mother is currently not engaged in any mental health
    treatment. Mother’s behaviors are escalating on a weekly basis. Mother’s behaviors
    are occurring in the presence of her children.”)
    {¶ 66} In addition, the GAL noted in a July 2019 report that despite Mother’s mental
    health diagnoses and previously prescribed medication, Mother “is not on medication
    now, and stopped medication at 17. When [L.R.B.] was in the hospital in March 2016,
    mother was taken to [Miami Valley Hospital] for suicidal ideation. Mother stated she had
    an appointment on December 29, 2018 at the Wellness Center but forgot about it, did not
    attend, and did not re-schedule. Mother stated it is hard for her to even get up and
    function every day.” July 8, 2019 GAL Report at p. 4.
    {¶ 67} In light of the above discussion, competent and credible evidence existed
    to support the trial court’s findings on the matters listed in R.C. 2151.414(E)(2).
    3. R.C. 2151.414(E)(3)
    {¶ 68} The trial court also made a finding under R.C. 2151.414(E)(3), which
    requires that “[t]he parent committed any abuse as described in section 2151.031 of the
    Revised Code against the child, caused the child to suffer any neglect as described in
    section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as
    -25-
    described in section 2151.03 of the Revised Code between the date that the original
    complaint alleging abuse or neglect was filed and the date of the filing of the motion for
    permanent custody.” This finding was based on L.R.B.’s admission at DHC in March
    2016, the fact that her non-accidental injuries were substantiated by C.A.R.E. House, and
    the fact that L.R.B. again sustained non-accidental injuries while she was reunified with
    Mother for a brief period. Final Order at p. 7. Given our discussion of the abuse in the
    statement of facts, we find that competent, credible evidence supported the trial court’s
    finding.
    4. R.C. 2151.414(E)(4)
    {¶ 69} R.C. 2151.414(E)(4) pertains to whether a “parent has demonstrated a lack
    of commitment toward the child by failing to regularly support, visit, or communicate with
    the child when able to do so, or by other actions showing an unwillingness to provide an
    adequate permanent home for the child.” The trial court’s finding on this point was based
    on the fact that the parents failed to address the concerns that required the children’s
    removal.   In particular, the court highlighted the parents’ unwillingness to provide a
    permanent home. Final Order at p. 7. The court also stressed that the parents’ lack of
    progress with the case plan revealed an unwillingness to provide for the children’s basic
    necessities.
    Id. {¶ 70} Based
    on our previous discussion, the trial court’s finding on this factor was
    supported by competent, credible evidence.
    5. R.C. 2151.414(E)(14)
    -26-
    {¶ 71} The final factor the trial court discussed is whether “[t]he parent for any
    reason is unwilling to provide food, clothing, shelter, and other basic necessities for the
    child or to prevent the child from suffering physical, emotional, or sexual abuse or
    physical, emotional, or mental neglect.” R.C. 2151.414(E)(14). The court’s finding in
    this regard was based on the original injuries to L.R.B., the parents’ failure to verify
    employment and lack of independent housing, Mother’s failure to address her substance
    abuse and mental health issues, and the physical trauma to L.R.B. after reunification.
    Final Order at p. 7.      For the reasons previously discussed, this finding was also
    supported by competent and credible evidence.
    {¶ 72} Because the trial court’s findings under R.C. 2151.414(E)(1), (2), (3), (4),
    and (14) were properly supported by the evidence, the court did not err in concluding that
    J.B.B. could not “be placed with one of the child’s parent’s within a reasonable time or
    should not be placed with either parent.” R.C. 2151.414(B)(2).
    B. The Best Interest of the Children
    {¶ 73} Because the first prong of R.C. 2151.414(B)(2) was satisfied to J.B.B., the
    remaining issue was whether awarding permanent custody of all three children was in
    their best interest. Concerning a child's best interest, “R.C. 2151.414(D) directs the trial
    court to consider all relevant factors when determining the best interest of the child,
    including but not limited to: (1) the interaction and interrelationship of the child with the
    child's parents, relatives, foster parents and any other person who may significantly affect
    the child; (2) the wishes of the child; (3) the custodial history of the child, including whether
    the child has been in the temporary custody of one or more public children services
    -27-
    agencies or private child placing agencies for twelve or more months of a consecutive
    twenty-two-month period; (4) the child's need for a legally secure permanent placement
    and whether that type of placement can be achieved without a grant of permanent custody
    to the agency; and (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are
    applicable.” In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 15. “No one
    element is given greater weight or heightened significance.” In re C.F., 
    113 Ohio St. 3d 73
    , 2007-Ohio-1104, 
    862 N.E.2d 816
    , at ¶ 57, citing In re Schaefer, 
    111 Ohio St. 3d 498
    ,
    2006-Ohio-5513, 
    857 N.E.2d 532
    , ¶ 56.         To evaluate the court's decision, we will
    consider these statutory factors.
    1. Interaction and Interrelationship of Children with Parents and Foster Parents
    {¶ 74} The trial court found that this factor weighed in favor of granting permanent
    custody due to the children’s long placement in foster care, their removal after
    reunification due to Mother’s failure to comply with court orders, the suspension of
    Mother’s visits due to L.R.B.’s anxious behavior in connection with visits, and the
    children’s bonding in the foster home with each other and with the foster family. Final
    Order at p. 8.
    {¶ 75} According to Mother, the evidence indicated that the children were bonded
    with her, that they had a relationship with the maternal grandparents, and that Mother
    visited consistently. However, the record also indicated that L.R.B. suffered physical
    abuse twice while living in a house with Mother and the maternal grandparents. MCCS,
    therefore, considered abuse substantiated with respect to the grandparents and Mother.
    September 5, 2018, GAL Report, p. 5-6; March 14, 2019 GAL Report, p. 5; Tr. at p. 17,
    -28-
    25, 31, 33, 44, 49, 150, 170-171, 172, 173, and 182.
    {¶ 76} Moreover, L.R.B’s visitation with Mother was stopped in September 2018
    due to L.R.B.’s “emotional and hysterical behavior when she became aware it was visit
    day.” March 14, 2019 GAL Report at p. 3. Mother and her parents also demonstrated
    little awareness or concern of the effect of their statements on N.J.B., when they told him
    shortly before the permanent custody hearing that he would be coming back to live at the
    residence where he had been reunited with Mother.
    Id. at
    p. 10. This occurred even
    though the grandparents had already been told that MCCS would not be pursing
    placement of the children with them.
    Id. {¶ 77} We
    have also discussed Mother’s inappropriate behaviors in front of N.J.B.
    and J.B.B. and her repeated comments to them about coming home, demonstrating again
    a lack of awareness and concern over their welfare. See Brun Affidavit at p. 1. Finally,
    there was competent, credible evidence that the children had bonded with each other and
    their foster family. Tr. at p. 85, 144, 145, and 147.
    {¶ 78} Accordingly, we agree with the trial court that this factor weighed in favor of
    granting permanent custody to MCCS.
    B. The Wishes of the Children
    {¶ 79} The trial court found that L.R.B. and J.B.B. were too young to express their
    wishes, and that N.J.B. wished to live with his parents. The court therefore found that
    this factor weighed in favor of granting custody to MCCS. We agree with the court. At
    the time of the permanent custody hearing, L.R.B. was three years old, and J.B.B. was
    only a year and half old.     While N.J.B. was five years old and perhaps technically
    -29-
    capable of expressing his wishes, he was still very young, and both Mother and the
    grandparents had improperly attempted to influence him during visitation.
    C. Custodial History
    {¶ 80} Concerning this factor, the trial court found that the custodial history
    weighed in favor of granting custody to MCCS. In particular, the court focused on the
    fact that two children had been in the temporary custody of MCCS for 12 or more months
    of a consecutive 22-month period and that J.B.B. was only eight months old when
    removed from Mother’s care. The court also noted that when all three children were
    again removed in July 2018, they were placed in the same foster home. Again, we agree
    with the trial court, as these finding were supported in the record by competent, credible
    evidence. We also note that the children have done well in their prior and current foster
    placements. Tr. at p. 28, 56, 69, 73, 82, 83, 144-145, and 147.
    D. The Need for Legally Secure Placement
    {¶ 81} Regarding this factor, the trial court stated that considering the length of
    time the children had been removed from the home, they were “in desperate need of
    legally secure, permanent placement.” Final Order at p. 8. The court stressed these
    points: the parents’ failure to complete their case plan objectives; the fact that the children
    were in a foster-to-adopt placement and that the foster parents wanted to adopt the
    children; the fact that the children had spent “a significant part of their lives in foster care
    due to the parents’ failure and/or unwillingness to meet the children's needs”; the initial
    abuse of L.R.B. and subsequent discovery of abuse after the children were returned; the
    -30-
    lack of viable options for placement with Mother’s family; the fact that L.R.B. lived in the
    grandparents’ home both times that she suffered abuse; the grandparents domestic
    violence and criminal involvement; and Father’s statement “on several occasions that he
    was not in a position to care for the children.”
    Id. at
    p. 9.
    {¶ 82} Our review of the record reveals that it contained abundant competent and
    credible evidence to support these conclusions. The findings concerning abuse were
    particularly significant and troubling.    Based on the evidence we have previously
    discussed, no reasonable possibility existed that Mother and Father would be able to
    provide a legally safe and secure environment for the children.
    E. Whether any Factors in R.C. 2151.414(E)(7) to (11) Apply
    {¶ 83} As indicated previously, the trial court considered R.C. 2151.414(E)(1), (2),
    (3), (4) and (14) in considering whether J.B.B. could not be placed with one of the child’s
    parent’s within a reasonable time or should not be placed with either parent. For the
    reasons previously discussed, the trial court did not abuse its discretion concerning these
    factors. They weighed strongly in favor of granting permanent custody to MCCS.
    {¶ 84} Based on the preceding discussion, we conclude that the juvenile court
    properly weighed the pertinent factors in R.C. 2151.414(D) and (E), and in doing so, did
    not abuse its discretion in finding that granting permanent custody to MCCS was in the
    children's best interest.     Clear and convincing evidence supported this finding.
    Accordingly, Mother's sole assignment of error is overruled.
    III. Conclusion
    -31-
    {¶ 85} Mother’s assignment of error having been overruled, the judgment of the
    trial court is affirmed.
    .............
    TUCKER, P.J. and DONOVAN, J., concur.
    Copies sent to:
    Mathias H. Heck, Jr.
    Jamie J. Rizzo
    Karen S. Miller
    Marshall Lachman
    Jeffrey Livingston
    James Armstrong
    Hon. Anthony Capizzi
    

Document Info

Docket Number: 28826

Citation Numbers: 2020 Ohio 6642

Judges: Welbaum

Filed Date: 12/11/2020

Precedential Status: Precedential

Modified Date: 4/17/2021