In re C.B.

2013 Ohio 5040

Opinion

[Cite as In re C.B., 2013-Ohio-5040.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: JUDGES: Hon. W. Scott Gwin, P.J. C.B., JR., Hon. William B. Hoffman, J. J.B., Hon. Craig R. Baldwin, J. Z.B., Z.B., AND Case Nos. 2013AP070029, B.B. 2013AP070031

NEGLECTED/DEPENDENT CHILDREN OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division Case No. 12 JN 00193

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 8, 2013

APPEARANCES:

For Appellant, Father For Appellee

JOHN A. GARTRELL DAVID HAVERFIELD Assistant Public Defender Tuscarawas County Job & Family Service 153 N. Broadway 389 16th Street SW New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

For Appellant, Mother Guardian ad Litem

ADAM WILGUS KAREN DUMMEMUTH 401 Tuscarawas St. W. – Suite 200 349 East High Avenue Canton, Ohio 44702 P.O. Box 494 New Philadelphia, Ohio 44663 Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 2

Hoffman, J.

{¶1} In Tuscarawas App. No. 2012 AP 07 0029, Appellant Kathleen Butner

(“Mother”) appeals July 18, 2013 Findings of Fact/Judgment Entry entered by the

Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her

parental rights, privileges and responsibilities with respect to her minor children, C.B.,

J.B., Z.B., Zo.B., and B.B., and granted permanent custody of the children to Appellee

Tuscarawas County Job and Family Services. In Tuscarawas App. No. 2012 AP 07

0031, Appellant Christopher Butner (“Father”) also appeals the July 18, 2013 Findings

of Fact/Judgment Entry entered by the Tuscarawas County Court of Common Pleas,

Juvenile Division, which terminated his parental rights, privileges and responsibilities

with respect to the aforementioned minor children, and granted permanent custody of

the children to Appellee.

STATEMENT OF THE FACTS AND CASE

{¶2} Mother and Father are the biological parents of C.B. (dob 2/25/99), J.B.

(dob 3/8/02), Z.B. (dob 9/19/04), Zo.B. (dob 8/1/07), and B.B. (dob 7/20/10). Mother and

Father are married and live together.

{¶3} On April 4, 2012, the trial court issued an ex-parte order placing the five

minor children in the protective custody of Appellee. Appellee filed a complaint on April

5, 2012, alleging the children were neglected and dependent, and seeking temporary

custody. The complaint was based upon the fact the children were not being educated;

had significant delays, developmentally and socially; and had varying medical

conditions which were not being adequately treated. Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 3

{¶4} The trial court conducted an adjudicatory hearing on May 2, 2012. The

trial court granted Appellee’s request to amend the complaint. Mother and Father

stipulated to the amended complaint, finding the children to be neglected and

dependent.

{¶5} Appellee filed a Motion to Modify Previous Dispositions on February 4,

2013. Therein, Appellee indicated it continued to have significant concerns regarding

the parents’ ability to parent the children based upon the progress made with case plan

services coupled with their psychological evaluations and resulting diagnoses. The trial

court conducted a hearing on the motion on June 6, 2013.

{¶6} Elizabeth Benedetto, the ongoing case manager assigned to the family,

testified Appellee received a report in March, 2012, regarding C.B., the oldest child,

being aggressive and threatening to stab himself. The report further indicated all five of

the children had medical problems and were home schooled. The girls, who were age 8

and 4 at the time, wore diapers and drank from baby bottles. Mother expressed

concerns regarding Father’s mental health, stating he had made comments about

suicide. Mother worried about how Father would care for the other children while she

was with C.B. at his appointments. Mother felt helpless, claiming she had no family

support. The family had an extensive history with Appellee.

{¶7} Benedetto stated the children were skinny, pale-skinned and had sunken

eyes when they arrived in custody. Mother and Father reported C.B. had ADHD; J.B.

had a seizure disorder and ADHD; Z.B. had a seizure disorder, had a feeding tube

which she would need her entire life, had been diagnosed with failure to thrive, had not

been expected to live past the age of three, had been diagnosed with Fragile X Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 4

syndrome, and had an abnormal ninth chromosome; and Zo.B. had a seizure disorder

and a brain tumor. Parents did not report any medical issues with the youngest child,

B.B. J.B., Z.B., and Zo.B. took seizure medication. J.B. also took prescription

medication for ADHD.

{¶8} Benedetto described the children’s educational status. Parents advised

Appellee the children were home schooled, using an online program. However, upon

further investigation, Appellee learned the children had not logged onto the program in

months and the school district was considering filing truancy charges. The children had

not had any type of schooling in two years. The school district had not approved the

home school program Parents were currently using or the program the family previously

utilized.

{¶9} After approximately two weeks in foster care, Z.B. and Zo.B. were

appropriately toilet trained and no longer drinking out of baby bottles. Z.B. did not need

or use the feeding tube once she was in foster care, and the device was removed in

July, 2012. Z.B. was not having any feeding issues. J.B., Z.B., and Zo.B. were taken

off the seizure medications. J.B. did continue to take a prescription medication for his

focus issues.

{¶10} With regard to the children’s education, Benedetto testified they are in

public school and have done “amazing”. The oldest two boys, C.B. and J.B. are excited

to be in school, interact well with their peers, and enjoy the camaraderie of the school

community. C.B. played on the 8th grade football team and was a team leader. His self-

esteem had greatly improved. J.B. has an accommodation plan to help with his

educational delays. His teachers reported consistent, daily progress. Since arriving in Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 5

foster care, the children have “blossomed”, they play, interact, and visit the library.

C.B., the oldest, struggled significantly with letting go of his control of his siblings. From

the time he was seven, C.B. was the family caretaker. C.B. is doing well and starting to

live like a “normal child”.

{¶11} Parents’ case plans required them to complete psychological evaluations

and follow with individual counseling. Father was also required to undergo a drug and

alcohol assessment. In addition, Parents’ were to maintain stable housing and

employment. Father admitted smoking “spice”, a synthetic marijuana. At the time of the

hearing, Father had finished the initial phase of his drug and alcohol screen, and was

working through the second phase. Parents had supervised visitation throughout the

pendency of the matter. They consistently visited the children. Benedetto had no

particular concerns relative to their interaction with the children. C.B. did not attend

visitation as such resulted in extreme stress for him. His foster parents and counselors

have encouraged him to see Parents. Occasionally, J.B. would forego seeing Parents,

which was also the result of extreme stress.

{¶12} Although Parents have done everything on their case plans, Benedetto

testified it was in the children’s best interest to be placed in the permanent custody of

Appellee. Benedetto raised concerns based upon Parents’ prior involvements with

Appellee as well with Stark County Children’s Services. She feared Parents would

revert back to their old ways as they had done in the past.

{¶13} C.B. and J.B. are in the same foster home, while the youngest three

children are together in another foster placement. Benedetto believed there was a very

good chance both placements would become permanent. Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 6

{¶14} Barbara Schwartz, a clinical therapist at the Chrysalis Counseling Center

in New Philadelphia, Ohio, testified she conducted the evaluations of Mother and

Father. Mother described an extremely traumatic childhood/young adulthood filled with

emotional and physical abuse. Mother reported she had been beaten, raped, confined,

starved, and shot. The traumas had been inflicted upon Mother by both her biological

parents and foster parents. Schwartz indicated Mother’s report struck her as unusual

as it was expansive and dramatic, yet Mother provided little detail. Mother also

informed Schwartz about the children’s numerous medical issues. Mother had an

irrational sense of the world as a terrifying place. After completing interviews and

studying the results of the psychological testing, Schwartz diagnosed Mother with

paranoid personality disorder, schizoid personality traits, and factious disorder, more

commonly known as Munchausen syndrome. Schwartz expressed concern regarding

the children being placed back in Mother’s care due to the high recidivism rate of

individuals with factious disorder. The safety of the children is the most important aspect

when treating individuals with this disorder.

{¶15} Schwartz diagnosed Father as having an adjustment disorder with anxiety

and dependent personality traits. Father did not present with any psychosis or

delusional thought disorders. Schwartz indicated Father was a hands-off parent.

Father’s long term prognosis was poor. Schwartz explained both Mother and Father

would have to change their patterns of interaction. Father’s deference to Mother

regarding the children’s medical treatments and educational decisions caused Schwartz

a great deal of concern. Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 7

{¶16} Via Findings of Fact/Judgment Entry filed July 18, 2013, the trial court

terminated Mother and Father’s parental rights, privileges, and responsibilities. The trial

court found the children could not and should not be placed with either parent within a

reasonable time, and it would be in the children’s best interest to grant permanent

custody to Appellee.

{¶17} It is from this judgment entry Mother appeals, assigning as error:

{¶18} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR

CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A

REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY

OF THE EVIDENCE.

{¶19} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING

OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

{¶20} Father appeals from the same entry, raising as error:

{¶21} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY

SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT

THE CHILDREN COULD NOT BE PLACED WITH FATHER AND MOTHER IN A

REASONABLE AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT

CUSTODY WAS IN THE CHILDREN’S BEST INTEREST.”

{¶22} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C). Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 8

MOTHER I, II

Father I

{¶23} Because Mother and Father’s assignments of error require identical

analysis, we shall address said assignments of error together. In her first assignment of

error, Mother maintains the trial court's finding the children could not be placed with her

within a reasonable time was against the manifest weight and sufficiency of the

evidence. In her second assignment of error, Mother contends the trial court's finding an

award of permanent custody was in the best interest of the children was against the

manifest weight and sufficiency of the evidence. In his sole assignment of error, Father

asserts the same challenges.

{¶24} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent and credible evidence upon which the fact finder could base its judgment.

Cross Truck v. Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments

supported by some competent, credible evidence going to all the essential elements of

the case will not be reversed as being against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶25} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care. Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 9

{¶26} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's parents; (b) the

child is abandoned; (c) the child is orphaned and there are no relatives of the child who

are able to take permanent custody; or (d) the child has been in the temporary custody

of one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after

March 18, 1999.

{¶27} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,

including, but not limited to, the following: (1) the interaction and interrelationship of the

child with the child's parents, siblings, relatives, foster parents and out-of-home

providers, and any other person who may significantly affect the child; (2) the wishes of

the child as expressed directly by the child or through the child's guardian ad litem, with

due regard for the maturity of the child; (3) the custodial history of the child; and (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.

{¶28} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C. Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 10

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

{¶29} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should

not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of

the child's parents.

{¶30} Parents argue they each complied with and completed their respective

case plans. Parents testified they had come to recognize the shortcomings in their

parenting methods through counseling, and both believed the counseling would enable

them to improve their parenting skills. Parents submit they maintained stable housing

as they lived at the same home for five years prior to Appellee’s involvement, and the

rent and utilities were timely paid.

{¶31} As set forth in our Statement of the Facts and Case, supra, Barbara

Schwartz diagnosed Mother with paranoid personality disorder, schizoid personality

traits, and factious disorder, more commonly known as Munchausen syndrome.

Schwartz expressed concerns about the children being returned to Parents’ home

because the likelihood Mother would revert to her old behaviors was high. Mother

needed to be accountable for her actions. Further, Schwartz feared Father, who has

dependent personality traits, could not be assertive with Mother regarding the children’s Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 11

medical care and educational needs. Schwartz believed it would be dangerous for the

children to be returned.

{¶32} With respect to the best interest finding, the evidence revealed, despite

the myriad of medical problems Parents claimed the children suffered, only one child

had an actual medical condition. The children were thriving in foster care. They were

physically healthy and emotionally stable. They enjoyed going to school and making

friends.

{¶33} Based upon the foregoing, we find the trial court's findings the children

could not be placed with Parents within a reasonable time, and an award of permanent

custody was in the best interest of the children were not against the manifest weight of

the evidence and were based upon sufficient evidence. Mother's first and second

assignments of error are overruled. Father’s sole assignment of error is overruled.

{¶34} The judgment of the Tuscarawas County Court of Common Pleas, Family

Court Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. W. SCOTT GWIN

___________________________________ HON. CRAIG R. BALDWIN Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 12

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: : : C.B., JR., : J.B., : Z.B., : Z.B., AND : B.B. : : NEGLECTED/DEPENDENT : CHILDREN : : JUDGMENT ENTRY : : Case No. 2013AP070029

For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas, Family Court Division, is affirmed. Costs

assessed to Appellant.

___________________________________ HON. CRAIG R. BALDWIN IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: : : C.B., JR., : J.B., : Z.B., : Z.B., AND : B.B. : : NEGLECTED/DEPENDENT : CHILDREN : : JUDGMENT ENTRY : : Case No. 2013AP070031

For the reasons stated in our accompanying Opinion, the judgment of the

Tuscarawas County Court of Common Pleas, Family Court Division, is affirmed. Costs

___________________________________ HON. CRAIG R. BALDWIN