[Cite as In re B.B., 2011-Ohio-2679.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
IN THE MATTER OF: : : B.B., L.B., J.B. and A.C. : Appellate Case No. 2010-CA-68 : : Trial Court Case Nos. N40828 : Trial Court Case Nos. N40869 : Trial Court Case Nos. N40920 : : (Juvenile Appeal from : (Common Pleas Court) : ...........
OPINION
Rendered on the 3rd day of June, 2011.
...........
STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg. #0074882, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Appellee, State of Ohio
JENNIFER S. GETTY, Atty. Reg. #0074317, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Appellant, I.C.
ALAN COLLINS, Atty. Reg. #0062915, 864 Trent Close, Springfield, Ohio 45505 Attorney for Minor Children
ROBERT HENDRIX, Atty. Reg. #0037351, 87 South Progress Drive, Xenia, Ohio 45385 Attorney for Appellee, L.B., Sr.
SUE RODERICK, 2100 Greene Way Boulevard, Xenia, Ohio 45385 Guardian Ad Litem
.............
HALL, J. 2
{¶ 1} Appellant I.C. appeals the judgment of the Greene County Juvenile Court
granting permanent custody of A.C. and J.B. to the Greene County Children Services Board.
We affirm.
I. The Children
{¶ 2} A.C., born July 14, 2005, and J.B., born January 3, 2009, are the daughters of
I.C. Their paternity is unknown. The girls have an older brother, L.B., born May 2, 2001, and
an older sister, B.B., born November 13, 1999, who are the children of I.C. and L.B., Sr. In
December 2008, B.B., L.B., and A.C. were removed from their home and placed in the
temporary custody of Children Services, which has been involved with the family since 2003.
The reasons they were removed were primarily I.C.’s and L.B., Sr.’s drug abuse that has
resulted in their failure to be adequate parents. On the morning of January 3, 2009, J.B. was
born with a high level of cocaine in her system. Later that day, J.B., too, was placed in
Children Services’ temporary custody. The following month, the children were adjudicated
dependent. See R.C. 2151.04 (defining “dependent child”). The children were placed in foster
homes, and Children Services developed a case plan for the family. The plan required I.C. to
stop using drugs, be assessed for substance abuse and mental heath treatment and comply with
any recommendations, submit to random drug screens, complete parenting classes, and visit
with her children.
{¶ 3} Nine months later, in November 2009, Children Services moved to secure
permanent custody of the children. A hearing took place in the juvenile court at which
Children Services presented the testimony of several witnesses. The testimony revealed that,
since she lost custody of her children, I.C. had failed to complete treatment for drug abuse, 3
despite being assessed and reassessed multiple times and each time being recommended for
treatment. Testimony further revealed that random drug screens over the preceding 14 months
showed that I.C. continued to use drugs. I.C. had, though, completed parenting classes and
visited with her children. The result of this first motion for permanent custody was that the
juvenile court denied Children Services’ motion, determining that permanent custody was not
in the children’s best interest. While I.C. had not fully complied with her case plan, said the
court, she had achieved some of the plan’s goals, and she was interested in achieving full
compliance. The court said that it would give I.C. an opportunity to demonstrate her full
commitment to her children.
{¶ 4} Two months later, in May 2010, Children Services again moved to secure
permanent custody. A hearing took place in September 2010. At the start of the hearing, the
parties agreed that, in making its determination, the court could consider the evidence that was
presented at the March hearing. Children Services then presented the testimony of several
witnesses. J.B.’s foster mother, K.S., testified about the extent of J.B.’s significant medical
issues. The court heard that J.B. has serious vision impairments. Her physical development is
delayed, and she receives physical therapy each week. J.B.’s speech is also delayed, and she
receives speech therapy each week. The court also heard about J.B.’s feeding problems
stemming from a hypersensitivity of the mouth and a hyperactive gag reflex. K.S. said that she
must carefully monitor J.B.’s food intake to ensure that she gets enough calories each day. For
her feeding problems, J.B. receives occupational therapy each week and takes medication to
help stimulate her appetite, which K.S. gives her twice daily. K.S. testified that, if the
opportunity arose, she and her family would be interested in adopting J.B.
{¶ 5} The court also heard testimony from I.C.’s caseworker and social worker. They 4
testified that, since the first permanent-custody hearing, I.C.had continued to test positive for
drugs. In the six months between the hearings, I.C. was clean only three times. They further
testified that I.C. failed to submit to a majority of the drug screens that Children Services tried
to administer. A case aide testified that on at least two occasions I.C. simply refused to be
screened and admitted that a drug test would be positive. As recently as the month before the
September hearing, I.C.’s caseworker testified, she submitted to only four of the nine drug
screens requested. And all four came back positive–one showing that I.C. had recently used
cocaine. At the time of the hearing, I.C. was pregnant with her fifth child.
{¶ 6} The court further heard that I.C. had still not completed treatment for her drug
abuse. Since the March hearing, I.C. was assessed twice more at TCN Behavioral Health
Center, and each time she was recommended for treatment but never completed it. Also, I.C.
again got into Women’s Recovery Center and was supposed to be admitted on August 25,
2010. She was not admitted, though, because she had tested positive for a drug cocktail of
benzodiazapine, marijuana, and cocaine.
{¶ 7} There was also testimony that I.C.’s drug abuse has resulted in a decrease of
visits with her children. Sometimes she did not show up. More often, the caseworker canceled
visits because I.C. had tested positive for drugs.
{¶ 8} This time, the juvenile court granted Children Services’ motion, at least in part.
The court determined that permanent custody was not in the best interest of B.B. and L.B. and
with respect to them denied the motion. But permanent custody was in the best interest of
A.C. and J.B., the court determined, and it granted the agency’s motion accordingly. I.C.
appealed and now presents two assignments of error. 5
II. Permanent Custody
A. “Reasonable time”
{¶ 9} In her first assignment of error, I.C. argues that the juvenile court abused its
discretion by determining that A.C. and J.B. could not be placed with her within a “reasonable
time,” pursuant to R.C. 2151.414(B)(2). Division (B)(2) of section 2151.414 does not apply in
this case.
{¶ 10} Division (B)(2) of section 2151.414 states that a juvenile court must grant
permanent custody of a child to the state if the court determines that the child either cannot be
placed with a parent within a reasonable time or should not be placed with either parent, and
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re B.B., 2011-Ohio-2679.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
IN THE MATTER OF: : : B.B., L.B., J.B. and A.C. : Appellate Case No. 2010-CA-68 : : Trial Court Case Nos. N40828 : Trial Court Case Nos. N40869 : Trial Court Case Nos. N40920 : : (Juvenile Appeal from : (Common Pleas Court) : ...........
OPINION
Rendered on the 3rd day of June, 2011.
...........
STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg. #0074882, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorneys for Appellee, State of Ohio
JENNIFER S. GETTY, Atty. Reg. #0074317, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Appellant, I.C.
ALAN COLLINS, Atty. Reg. #0062915, 864 Trent Close, Springfield, Ohio 45505 Attorney for Minor Children
ROBERT HENDRIX, Atty. Reg. #0037351, 87 South Progress Drive, Xenia, Ohio 45385 Attorney for Appellee, L.B., Sr.
SUE RODERICK, 2100 Greene Way Boulevard, Xenia, Ohio 45385 Guardian Ad Litem
.............
HALL, J. 2
{¶ 1} Appellant I.C. appeals the judgment of the Greene County Juvenile Court
granting permanent custody of A.C. and J.B. to the Greene County Children Services Board.
We affirm.
I. The Children
{¶ 2} A.C., born July 14, 2005, and J.B., born January 3, 2009, are the daughters of
I.C. Their paternity is unknown. The girls have an older brother, L.B., born May 2, 2001, and
an older sister, B.B., born November 13, 1999, who are the children of I.C. and L.B., Sr. In
December 2008, B.B., L.B., and A.C. were removed from their home and placed in the
temporary custody of Children Services, which has been involved with the family since 2003.
The reasons they were removed were primarily I.C.’s and L.B., Sr.’s drug abuse that has
resulted in their failure to be adequate parents. On the morning of January 3, 2009, J.B. was
born with a high level of cocaine in her system. Later that day, J.B., too, was placed in
Children Services’ temporary custody. The following month, the children were adjudicated
dependent. See R.C. 2151.04 (defining “dependent child”). The children were placed in foster
homes, and Children Services developed a case plan for the family. The plan required I.C. to
stop using drugs, be assessed for substance abuse and mental heath treatment and comply with
any recommendations, submit to random drug screens, complete parenting classes, and visit
with her children.
{¶ 3} Nine months later, in November 2009, Children Services moved to secure
permanent custody of the children. A hearing took place in the juvenile court at which
Children Services presented the testimony of several witnesses. The testimony revealed that,
since she lost custody of her children, I.C. had failed to complete treatment for drug abuse, 3
despite being assessed and reassessed multiple times and each time being recommended for
treatment. Testimony further revealed that random drug screens over the preceding 14 months
showed that I.C. continued to use drugs. I.C. had, though, completed parenting classes and
visited with her children. The result of this first motion for permanent custody was that the
juvenile court denied Children Services’ motion, determining that permanent custody was not
in the children’s best interest. While I.C. had not fully complied with her case plan, said the
court, she had achieved some of the plan’s goals, and she was interested in achieving full
compliance. The court said that it would give I.C. an opportunity to demonstrate her full
commitment to her children.
{¶ 4} Two months later, in May 2010, Children Services again moved to secure
permanent custody. A hearing took place in September 2010. At the start of the hearing, the
parties agreed that, in making its determination, the court could consider the evidence that was
presented at the March hearing. Children Services then presented the testimony of several
witnesses. J.B.’s foster mother, K.S., testified about the extent of J.B.’s significant medical
issues. The court heard that J.B. has serious vision impairments. Her physical development is
delayed, and she receives physical therapy each week. J.B.’s speech is also delayed, and she
receives speech therapy each week. The court also heard about J.B.’s feeding problems
stemming from a hypersensitivity of the mouth and a hyperactive gag reflex. K.S. said that she
must carefully monitor J.B.’s food intake to ensure that she gets enough calories each day. For
her feeding problems, J.B. receives occupational therapy each week and takes medication to
help stimulate her appetite, which K.S. gives her twice daily. K.S. testified that, if the
opportunity arose, she and her family would be interested in adopting J.B.
{¶ 5} The court also heard testimony from I.C.’s caseworker and social worker. They 4
testified that, since the first permanent-custody hearing, I.C.had continued to test positive for
drugs. In the six months between the hearings, I.C. was clean only three times. They further
testified that I.C. failed to submit to a majority of the drug screens that Children Services tried
to administer. A case aide testified that on at least two occasions I.C. simply refused to be
screened and admitted that a drug test would be positive. As recently as the month before the
September hearing, I.C.’s caseworker testified, she submitted to only four of the nine drug
screens requested. And all four came back positive–one showing that I.C. had recently used
cocaine. At the time of the hearing, I.C. was pregnant with her fifth child.
{¶ 6} The court further heard that I.C. had still not completed treatment for her drug
abuse. Since the March hearing, I.C. was assessed twice more at TCN Behavioral Health
Center, and each time she was recommended for treatment but never completed it. Also, I.C.
again got into Women’s Recovery Center and was supposed to be admitted on August 25,
2010. She was not admitted, though, because she had tested positive for a drug cocktail of
benzodiazapine, marijuana, and cocaine.
{¶ 7} There was also testimony that I.C.’s drug abuse has resulted in a decrease of
visits with her children. Sometimes she did not show up. More often, the caseworker canceled
visits because I.C. had tested positive for drugs.
{¶ 8} This time, the juvenile court granted Children Services’ motion, at least in part.
The court determined that permanent custody was not in the best interest of B.B. and L.B. and
with respect to them denied the motion. But permanent custody was in the best interest of
A.C. and J.B., the court determined, and it granted the agency’s motion accordingly. I.C.
appealed and now presents two assignments of error. 5
II. Permanent Custody
A. “Reasonable time”
{¶ 9} In her first assignment of error, I.C. argues that the juvenile court abused its
discretion by determining that A.C. and J.B. could not be placed with her within a “reasonable
time,” pursuant to R.C. 2151.414(B)(2). Division (B)(2) of section 2151.414 does not apply in
this case.
{¶ 10} Division (B)(2) of section 2151.414 states that a juvenile court must grant
permanent custody of a child to the state if the court determines that the child either cannot be
placed with a parent within a reasonable time or should not be placed with either parent, and
determines that permanent custody is in the child’s best interest. But division (B)(2) applies
only “[w]ith respect to a motion made pursuant to division (D)(2) of section 2151.413.” R.C.
2151.414(B)(2). Division (D)(2) of section 2151.413 directs the state to move for permanent
custody if a juvenile court determines that reunifying the child with the parent is no longer the
goal. Here, such a determination was not made by the juvenile court before the state filed its
motion. We note that the court did not say that it was acting pursuant to division (B)(2).
Indeed, while some of the decision’s language suggests such a determination, the court never
said that A.C. and J.B. cannot be placed with I.C. within a reasonable time or should not be
placed with her.
{¶ 11} Rather, the court acted under division (B)(1) of section 2151.414, the division
on which Children Services expressly based its motion. Division (B)(1) provides that a court
may grant permanent custody to the state if the court determines, by clear and convincing
evidence, that permanent custody is in the child’s best interest “...and that any of the following
apply:...” (Emphasis added) This section requires the court to determine, again by clear and 6
convincing evidence, that at least one of four enumerated circumstances applies. Although the
first circumstance in (B)(1)(a) requires, like division (D)(2), that a parent placement cannot be
made within a “reasonable time,” that “reasonable time” for parental placement only applies if
the child has not been in the temporary custody of a public services agency for 12 or more
months of a consecutive 22-month period. The juvenile court expressly found (a finding that is
supported by the record) that the children in this case have been in Children Services’
temporary custody for more than 12 months of the prior 22-month period. Therefore the
circumstance of R.C. 2151.414(B) that applies here is, the fourth, (B)(1)(d). That section
provides for permanent custody to be determined in the child’s best interest if the child has
been in the temporary custody of a public children services agency for 12 or more months of a
consecutive 22-month period, without the necessity of a finding that parental placement
cannot be accomplished in a “reasonable time.”
{¶ 12} Therefore, as the state contends, the only question in this case is whether
permanent custody is in the children’s best interest. See In re J.W., Franklin App. Nos.
06AP-864, 06AP-1062, 06AP-875, 2007-Ohio-1419, at ¶15 (“Because the record supports the
trial court’s decision to proceed under R.C. 2151.414(B)(1)(d), the trial court did not need to
determine whether the child can or should be placed with either parent after a reasonable
time.”), citing In re Lopez, 166 Ohio App.3d 688, 2006-Ohio-2251, at ¶27-29 (“[U]nder R.C.
2151.414(B)(1)(b) through (d), the trial court is required only to determine whether the grant
of permanent custody is in the best interests of the child.”) (Citation omitted.).
{¶ 13} The first assignment of error is overruled.
B. “Best interest” of the children 7
{¶ 14} In the second assignment of error, I.C. argues that the juvenile court’s
determination that permanent custody is in A.C.’s and J.B.’s best interest is contrary to the
manifest weight of the evidence. We will not overturn a court’s grant of permanent custody to
the state because it is contrary to 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 * * * have been established.” In re A.U., Montgomery
App. No. 22287, 2008-Ohio-187, at ¶9 (Citations omitted.).
{¶ 15} In determining what is in the best interest of the child, the juvenile court must
consider all relevant factors, including, but not limited to, these: (1) the child’s interaction and
interrelationship with parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child, (2) the wishes of the child, (3) the
child’s custodial history, including whether the child has been in the temporary custody of a
public children services agency for 12 or more months of a consecutive 22-month period, and
(4) the child’s need for a legally secure permanent placement and whether such a placement
can be obtained without granting permanent custody. R.C. 2151.414(D)(1)(a) through (d). In
addition, the court must consider whether the parent has been convicted of certain offenses,
has withheld medical treatment or food, has placed the child at substantial risk of harm two or
more times due to alcohol or drug abuse and has rejected treatment or refused to participate in
further treatment two or more times, has abandoned the child, or has had parental rights to a
sibling of the child involuntarily terminated. R.C. 2151.414(D)(1)(e) (referring to the factors
in R.C. 2151.414(E)(7) through (11)).
{¶ 16} In this case, the testimony showed I.C. continued to abuse drugs and that abuse
has affected her ability to care for her children. The developed case plan had required I.C. to 8
abstain from drug use, to be assessed for substance abuse and mental health treatment and
comply with any treatment recommendations, to submit to drug screens, to complete parenting
classes, and to visit with the children. In the almost two years since the children were
removed, I.C. completed only parenting classes. She failed to complete substance-abuse
treatment, despite the efforts of Children Services to help. She failed to submit to drug
screens. Those screens to which she did submit revealed that I.C. continued to use drugs even
though she was pregnant with another child, and even though she had been told about J.B.’s
serious medical issues. The effect of her continued drug abuse on her ability to parent her
children is evident from the failure to even visit with her children on many occasions.
{¶ 17} In addition to relying on the professional testimony and opinions in support of
permanent custody, the juvenile court considered the relevant statutory factors. The court
found that during the visits she did have with A.C., I.C. interacted appropriately with her, and
appeared to have a positive relationship with her. The court recognized that A.C. has
expressed her wish to be reunited with I.C. The court noted that J.B.–too young to express her
wishes–has lived in the same foster home since she was three days old and has become
integrated with the family. The court further noted that she has a variety of special physical
and medical needs that her foster parents are making sure to meet. Furthermore, the foster
parents are interested in adopting J.B. The court found that there are no suitable relatives with
whom the children could be placed. And, as noted above, the court found that the children
have been in Children Services’ temporary custody for over 12 of the past 22 months.
{¶ 18} I.C. has a significant drug-abuse problem that has affected her parenting, and,
said the court, she has not shown any commitment to resolve it. Despite Children Services’
reasonable case plan and diligent efforts to help her, the court said, I.C. has failed 9
continuously and repeatedly to substantially remedy the conditions that lead to the children’s
being removed from her home. The juvenile court concluded that clear and convincing
evidence demonstrated that it is in the best interest of A.C. and J.B. to be placed in Children
Services’ permanent custody. We note that, while the court did not find the same for B.B. and
L.B., the court did order that Children Services no longer try to reunite them with I.C.. Rather,
the court ordered that the case plan be amended to focus efforts solely on reunifying B.B. and
L.B. with their father, L.B., Sr. The court said that the plan should include the goal that L.B.,
Sr. have stable housing without the presence of I.C.
{¶ 19} We conclude that the juvenile court had sufficient evidence to support its
determination that permanent custody to Greene County Children Services was in A.C.’s and
J.B.’s best interest.
{¶ 20} The second assignment of error is overruled. The judgment of the juvenile
court is Affirmed.
FAIN, J., and FROELICH, J., concur.
Copies mailed to:
Stephen K. Haller Elizabeth A. Ellis Jennifer S. Getty Alan Collins Robert Hendrix Sue Roderick Hon. Robert W. Hutcheson