In re B.S.

2015 Ohio 4805
CourtOhio Court of Appeals
DecidedNovember 23, 2015
Docket1-15-44
StatusPublished
Cited by14 cases

This text of 2015 Ohio 4805 (In re B.S.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re B.S., 2015 Ohio 4805 (Ohio Ct. App. 2015).

Opinion

[Cite as In re B.S., 2015-Ohio-4805.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

IN RE: CASE NO. 1-15-44

B.S.

ADJUDICATED DEPENDENT CHILD. OPINION

[REBECCA S. - APPELLANT]

Appeal from Allen County Common Pleas Court Juvenile Division Trial Court No. 2014 JG 31328

Judgment Affirmed

Date of Decision: November 23, 2015

APPEARANCES:

Brian J. Vennekotter for Appellant

Mariah M. Cunningham for Appellee Case No. 1-15-44

SHAW, J.

{¶1} Mother-appellant Rebecca S. (“Rebecca”) brings this appeal from the

June 23, 2015 judgment of the Allen County Common Pleas Court, Juvenile

Division, granting permanent custody of adjudicated dependent child “B.S.” to the

Allen County Children’s Services Board (“ACCSB”).

{¶2} The facts relevant to this appeal are as follows. B.S. was born

prematurely in February of 2014 with a number of congenital medical problems

and cranial facial deformities. He was born with Pierre Robin Sequence, “which

is an airway and oral anomaly genetically * * * driven * * * requiring

supplemental oxygen, [an] apnea monitor at birth” and frequent smaller feedings

due to the increased risk of choking. (May 13, 2015, Tr. at 7-8). B.S.’s specific

issues related to Pierre Robin Sequence included micrognathia, which was defined

as an undersized jaw that can lead to difficulty swallowing and breathing, and

ankyloglossia, which was defined as prohibiting movement of the tongue. B.S.

also developed upper respiratory issues.

{¶3} While B.S. was in the hospital just after his birth, Rebecca and Robert

S., B.S.’s father and Rebecca’s husband, were observed by hospital personnel

turning off B.S.’s monitor and not notifying hospital personnel when the alarm

sounded. B.S. was also observed lying on his back when the parents were

specifically advised not to allow it. Medical personnel feared that Rebecca and

-2- Case No. 1-15-44

Robert might not be competent to care for B.S. given his life-threatening

conditions.

{¶4} Based on these facts the ACCSB filed an ex parte motion for

emergency custody of B.S. On March 4, 2014, a shelter care hearing was held and

B.S. was ultimately placed in the shelter care of the ACCSB.

{¶5} On March 4, 2014, the ACCSB filed a complaint alleging that B.S.

was a dependent child. (Doc. No. 5). The trial court then appointed a Guardian ad

litem for B.S. In addition, due to the cognitive limitations of Rebecca and Robert,

a Guardian ad litem was appointed for each of them as well.

{¶6} On March 31, 2014, a case plan was filed wherein Rebecca and

Robert were required to demonstrate that they could provide for B.S. They were

also required, inter alia, to complete parenting classes and demonstrate the learned

skills from those classes, and to submit to psychological assessments.

{¶7} On April 23, 2014, a magistrate conducted an adjudicatory hearing

wherein the parties agreed that B.S. was a dependent child. The trial court

reviewed the magistrate’s decision finding that B.S. was dependent and

determined that B.S. was a dependent child as defined in R.C. 2151.04(C).

{¶8} On May 7, 2014, a dispositional hearing was held wherein the

magistrate determined that B.S. should be placed in the temporary custody of the

ACCSB. On July 2, 2014, the trial court agreed with the magistrate’s

recommendation and placed B.S. in the temporary custody of the ACCSB.

-3- Case No. 1-15-44

{¶9} Pursuant to the case plan, psychological evaluations were performed

of both Rebecca and Robert by Dr. Thomas Hustak. The evaluation determined

that Rebecca had an IQ composite of 70, indicating that approximately 98% of

people Rebecca’s age were doing better intellectually and only 1% were doing

worse. The evaluation indicated that Rebecca’s verbal ability corresponded to that

of a 10 year old and her nonverbal ability to that of an 8 year old. Rebecca was

also considered “high risk” for being physically abusive.

{¶10} Similar to Rebecca, Robert also had an IQ composite of 70. In

addition, the evaluation mentioned that Robert had previously been charged with

Gross Sexual Imposition of a 6 year old boy, but when Robert’s competency was

evaluated to see if he could stand trial, he was found not competent to stand trial.

Robert had also been found guilty of Domestic Violence against Rebecca, and

Rebecca indicated that she was fearful of him at times.

{¶11} The psychological evaluation indicated that neither parent could

identify B.S.’s problems or how they would deal with them. The evaluation also

indicated that neither parent had the ability to anticipate problems that would arise

as a result of parenting a child, particularly one with special needs.

{¶12} In summation, the evaluation contained the following information.

Sadly, one cannot fault either of these parents for their limited intellectual understanding. Their cognitive skills are genetic and developmentally based, not learned behavior. Therefore, they have their own developmental problems that are established by history and demonstrated in the present record. What is

-4- Case No. 1-15-44

problematic, however, is that this is not likely to get better over time because part of the major problem is developmental and, therefore, this is a static condition. You cannot expect them to grasp the full implications of how to manage a child when they can barely manage themselves.

Their developmental limitation is a condition of their living and is not going to get better with the passage of time. There will be “a ceiling” to improve, even with educational classes to enhance their skills. By definition, they will always be in a rather dependent situation with their child. Since neither parent can seem to control their own emotions historically and presently, one would have to conclude that they are placed into the category of High Risk parents. A child would also be considered a High Risk for physical abuse in this environment.

One would also have to anticipate that the child would be considered High Risk for “neglect,” since the parents don’t have a good understanding of the risk factors involved with their child and what will be needed to address those factors. One would conclude that some form of supervision, family aid, family training and education, and close monitoring will be a lifelong problem until they get older and the child grows to the point where the child can express their own needs at a much later age (i.e., age 10 on up). Until that time, a child placed in the care of Robert and Rebecca Smith will be considered at high risk based upon the history, the present evidence, the personality testing, and the intellectual limitations.

(ACCSB Ex. 1).

{¶13} On November 7, 2014, the ACCSB filed a motion requesting

permanent custody of B.S. The motion indicated that the agency had made

reasonable and diligent efforts to assist B.S.’s parents in remedying their issues but

the parents had failed to substantially remedy those conditions that led to B.S.

being taken.

-5- Case No. 1-15-44

{¶14} On May 6, 2015, a deposition was taken of Dr. Hustak, who had

conducted the psychological evaluations of Rebecca and Robert. In his deposition

Dr. Hustak further clarified his findings from his evaluation. Dr. Hustak testified

that he was concerned with Rebecca and Robert’s ability to care for themselves,

let alone a child with special needs. Dr. Hustak testified that it is possible for

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2015 Ohio 4805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bs-ohioctapp-2015.