In re M.B. , 2019 Ohio 3166 ( 2019 )

[Cite as In re M.B., 2019-Ohio-3166.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: M.B. C.A. No. 29180
R.B.
A.B.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 17-05-359
DN 17-05-360
DN 17-05-361
DECISION AND JOURNAL ENTRY
Dated: August 7, 2019
CARR, Judge.
{¶1} Appellant Father appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated the protective supervision of appellee Summit County
Children Services Board (“CSB” or “the agency”), retained his three children in the legal
custody of appellee Mother, and denied his motions for visitation and to modify the case plan.
This Court reverses and remands.
I.
{¶2} Father and Mother are the biological parents of M.B. (d.o.b. 1/22/04), R.B. (d.o.b.
4/22/05), and A.B. (d.o.b. 8/17/07), who were born during the course of the parents’ marriage.
In 2008, Mother and Father initiated divorce proceedings, which culminated in a judgment
decree of divorce. In 2014, cases involving each of the children were filed in the Summit
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County Juvenile Court. As a result of those cases, the children resided with Mother, while
Father enjoyed visitation with the children.
{¶3} In 2017, CSB filed complaints alleging that the three children were abused and
dependent based on allegations of sexual abuse by Father and the paternal grandmother, as well
as other behavior by Father which caused fear and distress in the children. The agency
immediately obtained an order that the children would remain in the legal custody of Mother
under an order of protective supervision by CSB. Father was to have no contact with the
children. After the shelter care hearing, the magistrate lifted the no contact order and allowed
Father to have supervised visitation. Father filed a motion for temporary custody to CSB, with
placement of the children in a foster home, based on his concerns that Mother was brainwashing
the children and alienating them from him. Father also moved for a psychological evaluation of
Mother and to transfer the children from their current counseling center to a counseling center
Father identified as equipped to address issues related to divorce and parental manipulation.
Shortly thereafter, Father filed a motion for legal custody and alleged that Mother and CSB were
engaged in a conspiracy to alienate the children from Father.
{¶4} After an adjudicatory hearing, the juvenile court found each child to be dependent
pursuant to R.C. 2151.04(C). The trial court dismissed all allegations of abuse and the remaining
allegations of dependency as to each child. After a dispositional hearing, the juvenile court
maintained the children in Mother’s legal custody and ordered CSB to provide protective
supervision. Based in part on the recommendation of the guardian ad litem, the juvenile court
suspended Father’s visitation with the children. The agency’s case plan was adopted as the order
of the court.
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{¶5} CSB later filed a motion to terminate protective supervision but withdrew it a few
months later based on Father’s progress on his case plan objectives. Because the children’s
counselors reported that the children were not yet ready to visit with Father or engage in joint
counseling with him, CSB moved for a first six-month extension of its protective supervision to
allow time for additional progress. Father filed a motion for visitation, a reallocation of parental
rights and responsibilities, and a modification of the case plan to address the issue of parental
alienation by Mother over the past ten years. Father appended to his motion a report by a
parental alienation expert who opined that all four factors indicative of parental alienation
existed regarding M.B., R.B., and A.B. Father requested that the juvenile court address his
motions at the hearing scheduled for May 22, 2018.
{¶6} The record indicates that the parties appeared for a hearing on May 22, 2018. The
juvenile court issued a judgment in which it merely continued the hearing to begin on July 30,
2018, without issuing any orders addressing Father’s motions for visitation and a modification of
the case plan to address the issue of parental alienation. Two months later, CSB filed a renewed
motion to terminate its protective supervision.
{¶7} At the beginning of the five-day hearing beginning on July 30, 2018, the juvenile
court informed the parties that the only pending motions before it were CSB’s written motion to
terminate permanent custody and the parents’ implicit motions for legal custody. When Father’s
attorney reminded the court that Father also had pending motions to modify the case plan and for
visitation in the interim, the juvenile court asserted that it would only consider final dispositional
motions, not any preliminary requests, because it planned to issue a final judgment fully
disposing of the case after hearing the evidence. Father argued that, despite his frequent and
repeated requests that CSB add an objective to the case plan to address the issue of parental
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alienation, the agency continually balked at the suggestion and the juvenile court had not
addressed the issue as Father raised it in a written motion.
{¶8} The juvenile court heard evidence over the course of a five-day hearing.
Although the trial court heard the testimony of Father’s witness who was declared to be an expert
in the area of parental alienation, it did so solely in consideration of whether the children were
exhibiting signs of parental alienation. At the conclusion of the hearing, the trial court denied
Father’s motions for a reallocation of parental rights and responsibilities, to resume his visitation,
and to modify the case plan to address issues of parental alienation. The court wrote that it
“cannot find that parental alienation occurred as to these children and their father” based in part
on its inability to accord much weight to the expert’s conclusion. In this regard, the juvenile
court expressed concern that it did not know what information the expert considered and because
the expert never observed the children with either parent.
{¶9} The juvenile court granted CSB’s motion to terminate the agency’s protective
supervision and retained the children in the legal custody of Mother. Father was not awarded
any visitation at that time but was granted leave to move for visitation in the future should he
engage in meaningful counseling in the interim. Father filed a timely appeal and raises two
assignments of error for consideration. This Court addresses the second assignment of error first,
as it is dispositive of the appeal.
II.
ASSIGNMENT OF ERROR II
THE COURT’S REFUSAL TO MODIFY THE CASE PLAN TO CLINICALLY
ASSESS THE CHILDREN AND/OR TREAT THE CHILDREN FOR
PARENTAL ALIENATION WAS AN ABUSE OF DISCRETION AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
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{¶10} Father argues that the juvenile court erred by failing to modify the case plan to
include an assessment to determine whether the children rejected Father based on parental
alienation by Mother, and, if so, to include a requirement for treatment to address that specific
issue. This Court agrees.
{¶11} A public children services agency must prepare and maintain a case plan
regarding children with whom it is involved, including children living at home but subject to an
order charging the agency with protective supervision. R.C. 2151.412(A)(3). One of the
primary goals of any case plan is to “respect and support the integrity of the child[ren]’s family
unit.” Ohio Adm.Code 5101:2-40-02(A)(1). The agency maintains a continuing duty to assess
the ongoing safety of children involved with the agency, as well as the “appropriateness of the
intensity and duration of the services provided to meet child and family needs throughout the
duration of a case.” R.C. 5153.16(B)(1) and (2). In addition, the agency is required to conduct
semiannual administrative reviews of the case plan, to include a meeting with all parties, to
determine, among other things, what progress has been made in alleviating the concerns that
precipitated the agency’s involvement. R.C. 2151.416(C), (D). In conducting the case plan
reviews, the health and safety of the children “shall be the paramount concern.” R.C.
2151.416(A).
{¶12} Pursuant to R.C. 2151.412(F)(2), “[a]ny party may propose a change to a
substantive part of the case plan * * *. A party proposing a change to the case plan shall file the
proposed change with the court and give notice of the proposed change in writing * * * to all
parties and the child[ren’s] guardian ad litem.” The parties then have seven days in which to
object to the proposed change. Id. Where no party objects, the juvenile court may approve the
proposed change without a hearing; but if the court does not approve the change in the absence
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of objections, it must schedule a hearing on the matter. R.C. 2151.412(F)(2)(b). This Court has
recognized the propriety of a party other than the agency filing a proposed case plan amendment.
See In re A.P., 9th Dist. Medina No. 12CA0022-M, 2012-Ohio-3873, ¶ 7-15.
{¶13} Because case plans are designed to address services necessary to facilitate a
family’s reunification efforts, it is axiomatic that any proposed modification must be addressed at
a time when its adoption or rejection would still give the family time to work on objectives to
address ongoing issues hindering stability. When a trial court considers the propriety of a
proposed case plan modification at the same time it is determining the appropriate final
disposition of the children, it has effectively predetermined the inefficacy of the proposed
modification and foreclosed a prospective custodian from demonstrating the ability to provide
for the care and well-being of the children. The statute, too, recognizes the preliminary nature of
determining whether proposed amendments to case plans are appropriate by requiring that the
trial court schedule a hearing on the matter within thirty days of the request for a modification.
R.C. 2151.412(F)(2)(a).
{¶14} In this case, Father raised the issue as early as the shelter care hearing, only one
week after CSB filed its complaints, that the children had been subjected to manipulation by
Mother and that they had begun expressing an aversion to having a relationship with Father. Not
only Father, but Father’s brother in law, testified to the change in the children’s attitudes towards
him. When CSB filed its proposed case plan shortly thereafter, however, it did not contain any
objective to address the issue of parental alienation. A couple days later, Father filed a motion
for CSB to assume temporary custody of the children and place them in a foster home based on
Father’s concern that Mother was manipulating the children to compel them to ostracize Father.
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{¶15} Before the juvenile court issued an adjudicatory judgment, M.B. and R.B. each
executed a written acknowledgement of their right to attend hearings in the juvenile court,
choosing to attend some court hearings. In the comment section of their acknowledgments, M.B.
wrote that he does not visit Father who sexually abused him, while R.B. wrote that she does not
want to see Father.
{¶16} Father filed a lengthy “trial brief” relevant to adjudication in which he went into
great detail supporting his concerns that Mother had engaged in conduct designed to alienate the
children from Father. Based on evidence presented at the adjudicatory hearing, the juvenile
court could not find that the children had been abused by Father. The juvenile court premised its
sole finding of dependency on the negative effect of the parents’ acrimonious divorce on the
children, and the highly disproportionate response of the children towards Father as compared to
his actual conduct. Based on the children’s seemingly unfounded extreme aversion to Father, the
juvenile court “question[ed] the ability of the parents to assure that these children are being
properly cared for and that their mental health needs are being met.” Despite the trial court’s
concern that the children’s attitudes towards Father did not seem appropriate based on Father’s
actions, CSB did not modify its proposed case plan to address alleged issues of manipulation of
the children by Mother.
{¶17} Throughout the pendency of the case, Father repeatedly raised his concerns that
Mother had engaged in long-term conduct designed to alienate the children from Father, and that
the children had been thereby manipulated to develop an extreme aversion to Father, Father’s
family, and anything (activities, sports, where the children attended school) Father supported.
When CSB initially moved to terminate protective supervision, the agency acknowledged the
children’s ongoing desire not to see Father. Nevertheless, CSB believed that its involvement was
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no longer necessary because the children were safe in Mother’s care. In response, Father
implored the agency to investigate the issue of parental alienation. He requested that Mother be
ordered to undergo a psychological evaluation to determine her role in manipulating the children
to convince them that Father had engaged in egregious conduct. In addition, because the
children were refusing to have any interaction with Father, he obtained an expert in the field of
parental alienation to evaluate the situation. While the expert evaluated the matter to the best of
her ability, she did not have access to the children’s records, Mother, the ability to observe the
children with either parent, or the children themselves, as she would have had the issue been
included as a case plan objective.
{¶18} CSB modified the case plan twice, once after the juvenile court ordered a trauma
assessment for the children and a parenting evaluation for Mother after the dispositional hearing,
and once to add a psychiatric evaluation and individual counseling for Father and to add
individual counseling for Mother, in part to address her need for parental boundaries and
discipline. Based on Father’s progress, CSB withdrew its motion to terminate protective
supervision and instead requested a six-month extension. Although the children were doing well
in Mother’s care, their counselors advised that they were not ready to visit with Father or engage
in joint counseling with him.
{¶19} Mere days later, Father filed his motion to modify the case plan to address the
root of the problem that the case plan had no objective to address, specifically, Father’s
allegation of ongoing parental alienation of the children by Mother. Despite the children’s
engagement in counseling, they still refused to have any contact or relationship with Father or his
family. They discontinued participating in sports Father had initiated with them. In addition,
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Mother removed the children from the parochial school associated with Father’s church and
enrolled them in public school, further severing a connection with Father.
{¶20} Father requested that his motion to modify the case plan be heard at a hearing
scheduled for May 22, 2018. At that time, CSB had no final dispositional motion pending, as it
had recently moved for a six-month extension of the agency’s protective supervision. The
juvenile court later continued the May 22 hearing and rescheduled it to begin on July 30, 2018.
In the interim, CSB filed a motion to terminate its protective supervision on July 23, 2018.
{¶21} When the parties appeared for the July 30 hearing, the juvenile court informed
them that the pending motion for consideration was CSB’s motion to terminate protective
supervision and retain the children in Mother’s legal custody, a motion which it recognized that
Mother supported. When Father reminded the court of his pending motions for visitation and a
case plan modification, the juvenile court asserted that the purpose of the scheduled hearing was
to finalize issues regarding the children’s custody, not to address a modification of the case plan
or any other preliminary matters. Although the juvenile court acknowledged Father’s pending
motions, it asserted that it nevertheless intended to make a final determination as to custody at
the conclusion of the hearing without consideration of any issues preliminary to a resolution of
custody. When Father reminded the court that his preliminary issues were scheduled for
consideration at the May 22 hearing, the juvenile court agreed but asserted that that hearing had
been continued until July 30. Nevertheless, the juvenile court reiterated its refusal to consider
the preliminary issues, including Father’s motion to modify the case plan, at the hearing.
{¶22} During opening statements, Mother conceded that she had not filed a motion to
terminate the agency’s protective supervision because she was waiting to see if CSB believed
there was any merit to extending the juvenile court’s jurisdiction to allow the parties to continue
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to work on case plan objectives. Mother asserted that services had been helpful for the children
but not helpful to solving the problems between the children and Father. Accordingly, Mother
requested the termination of the agency’s protective supervision because CSB had “worked as
hard as it could” and there was nothing more that could be done to facilitate a relationship
between Father and the children at that time.
{¶23} In response, Father reiterated his belief that the juvenile court had agreed to
consider extending the agency’s protective supervision to further facilitate efforts to reunify the
children with him. When the juvenile court suggested that that could happen without the
involvement of CSB, Father responded that the underlying issue of parental alienation, never
addressed by the agency, would be an ongoing barrier to Father’s ability to reestablish a
relationship with his children. Father expressed his frustration that the children’s counseling
sessions had not been at all effective because the children continued to reject Father. At the time
of the hearing, Father had not seen the children in eleven months and they remained adamant
about their desire not to see him despite their compliance with the case plan objective that they
engage in counseling. Father explained that the counseling efforts were unsuccessful because
they did not address the underlying issue of parental alienation, a situation that requires
intervention by an expert trained to address that issue. Despite Father’s repeated requests to the
agency, and his agreement to pay for all treatment, CSB repeatedly refused to consider
addressing the issue of parental alienation, instead asserting that the juvenile court must
determine whether parental alienation is an issue that must be addressed in this case.
{¶24} The guardian ad litem noted that Father had raised the issue of parental alienation
ad nauseum from the very beginning of the case, but that Father should have concentrated on
addressing his own issues instead. The guardian ad litem asserted that the children are safe and
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“feel very liberated” without Father. She moreover asserted that the children were victims of
sexual abuse even if the juvenile court had not found that to be true.
{¶25} The juvenile court proceeded with a five-day hearing to determine the appropriate
final disposition for the children. Although the court heard testimony from Father’s expert in the
area of parental alienation, the juvenile court ultimately discounted it based, in part, on the
expert’s failure to interview the children or observe them with either parent.
{¶26} Based on Father’s ongoing concern that Mother had manipulated the children to
reject Father, the children’s complete aversion to reestablishing a relationship with Father despite
their engagement in counseling and no contact with Father for eleven months, and the
unwillingness of CSB and the guardian ad litem to take seriously Father’s allegations because the
children were safe and secure with Mother, the juvenile court should have at a minimum
considered the merits of Father’s motion to modify the case plan at a time when any issue could
still be addressed to effect the primary goals of supportive services, e.g., to “respect and support
the integrity of the child[ren]’s family unit.” See Ohio Adm.Code 5101:2-40-02(A)(1). Father
proposed an amendment to the case plan as permitted by R.C. 2151.412(F)(2). He requested a
hearing on the matter. The juvenile court continued the hearing but then refused to consider any
preliminary matters that would extend the court’s jurisdiction and maintain the children under
the agency’s protective supervision to allow for further reunification efforts. As in In re A.P.,
supra, the proper procedure would have been for the juvenile court to fully consider whether a
case plan amendment was warranted in a separate hearing in advance of the final dispositional
hearing. Father’s first assignment of error is sustained.
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ASSIGNMENT OF ERROR I
THE COURT’S DENIAL OF FATHER’S REQUEST FOR CUSTODY AND
VISITATION WAS AN ABUSE OF DISCRETION AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶27} Father argues that the juvenile court’s denial of his motions for visitation and
legal custody were against the manifest weight of the evidence. Our resolution of Father’s
second assignment of error makes any determination as to his first premature.
III.
{¶28} Father’s second assignment of error is sustained. This Court declines to address
the first assignment of error. The judgment of the Summit County Court of Common Pleas,
Juvenile Division, is reversed and the cause remanded for further proceedings consistent with
this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellee Summit County Children Services Board.
DONNA J. CARR
FOR THE COURT
CALLAHAN, P.J.
HENSAL, J.
CONCUR.
APPEARANCES:
DANIEL A. LEISTER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
MOTHER, pro se, Appellee.
SARAH HURLBURT, Attorney at Law, Guardian ad litem.