[Cite as In re J.B., 2018-Ohio-1033.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: Hon. W. Scott Gwin, P.J. J.B., K.B. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.
Case Nos. 2017CA00177, 2017CA00178
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case Nos. 2016 JCV 00618, 2016 JCV 00619
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2017
APPEARANCES:
For Appellant- Father For Appellee - SCDJFS
KATHALEEN O'BRIEN BRANDON J. WALTENBAUGH 1967 E. Maple Street Stark County Dep’t. of Job/Family Services North Canton, Ohio 44720 402 2nd Street SE Canton, Ohio 44702 Stark County, Case Nos. 2017CA00177, 2017CA00178 2
Hoffman, J.
{¶1} In Stark App. No. 2017CA00177, Appellant Rory Bowers (“Father”) appeals
the August 28, 2017 Judgment Entry and Findings of Fact and Conclusions of Law
entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated his parental rights, privileges, and responsibilities with respect to his minor
child (“Child 1”), and granted custody of the child to Appellee Stark County Department
of Job and Family Services (“SCDJFS”). In Stark App. No. 2017CA00178, Father appeals
a second August 28, 2017 Judgment Entry and Findings of Fact and Conclusions of Law
also entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated his parental rights, privileges, and responsibilities to his other minor child
(“Child 2”), and granted permanent custody of the child to SCDJS.
STATEMENT OF THE CASE AND FACTS
{¶2} Melodi Bowers (“Mother”) and Father are the biological parents of Child 1
and Child 2. On August 1, 2016, SCDJFS filed complaints, alleging Child 1 and Child 2
were dependent, neglected, and/or abused children. The allegations in the complaints
centered on Mother’s severe drug use, her lack of parenting skills, the family’s lack of
appropriate housing, and the children’s poor hygiene. The trial court conducted a shelter
care hearing on the same day. After Mother and Father stipulated to a finding of probable
cause, the trial court found probable cause and placed the children in the emergency
temporary custody of SCDJFS. The trial court appointed Attorney Mary Lou Sekula as
attorney and guardian ad litem for the children. Stark County, Case Nos. 2017CA00177, 2017CA00178 3
{¶3} At an adjudicatory hearing on September 30, 2016, the trial court found the
children to be neglected and placed them in the temporary custody of SCDJFS. The trial
court approved and adopted the case plan.
{¶4} The trial court conducted a review hearing on January 27, 2017, and found
Father was still using illicit drugs, had recently been evicted, and was not progressing on
his case plan. The trial court again approved and adopted the case plan, and maintained
the status quo.
{¶5} At a review hearing on May 30, 2017, the trial court found the children had
recently disclosed Father had perpetrated persistent sexual abuse upon them in the past.
The trial court also found there was evidence to believe Mother knew about the abuse
and did nothing to prevent it from occurring or to protect the children. Further, Mother
and Father had fled to Florida. The trial court issued a No Contact Order, which also
included the children’s paternal grandparents.
{¶6} On June 16, 2017, SCDJFS filed motions for permanent custody, alleging
the children could not and should not be placed with Father within a reasonable amount
of time; Father had committed abuse against the children and the seriousness of the
abuse rendered placement of the children with Father a threat to their safety; Father had
abandoned the children; and it was in the children’s best interest to grant permanent
custody to the Agency. Attorney Sekula submitted her Guardian ad Litem Report on June
23, 2017, recommending the children be placed in the permanent custody of SCDJFS.
The trial court conducted a review hearing on June 27, 2017, and found Father was not
making progress on his case plan. Specifically, Father had not successfully completed
substance abuse treatment, had tested positive for illegal substances during the Stark County, Case Nos. 2017CA00177, 2017CA00178 4
pendency of the proceedings, had not make any progress in Goodwill classes, and had
fled to Florida after he was interviewed by police regarding the children’s disclosures of
sexual abuse.
{¶7} The trial court conducted a hearing on the motions for permanent custody
on August 10, 2017. Father did not attend the hearing. Counsel for Father stated he had
spoken with Father the day before the hearing and Father indicated he would be
unavailable to attend the hearing.
{¶8} Vickie Mitchell, the ongoing case worker, testified SCDJFS became
involved with the family after police responded to the home and found Mother on the front
lawn, “drooling and incoherent” and under the influence of drugs. Police administered
Narcan and Mother was transported to the hospital. Father was not present and could
not be reached. The children, who were in filthy clothing, were unsupervised. The home
was in deplorable condition with animal waste covering the floor and rotting food left out.
In addition, there were no working utilities and the home was infested with bugs.
{¶9} Father’s case plan required him to complete a psychiatric evaluation at
Northeast Ohio Behavior Health and follow all recommendations; engage in individual
counseling to address anger management and coping skills; participate in Goodwill after
he demonstrated an ability to abstain from all mood altering substances; participate with
Quest Recovery Services; attend at least two 12 step meetings a week; find a sponsor;
secure and maintain gainful employment; and secure appropriate housing.
{¶10} Father was inconsistent with individual counseling. Although he started
Goodwill classes, Father was terminated prior to completion due to violations of his
behavior contract which required him to be attentive in class and to submit to random Stark County, Case Nos. 2017CA00177, 2017CA00178 5
urine screens. Father fell asleep during classes and missed a drug screen. Father had
not submitted a urine screen since April, 2017. He did not find a sponsor or attend 12 step
meetings. Father’s services stopped after he and Mother relocated to Florida in April,
2017.
{¶11} SCDJF’s initial concerns centered upon Mother and Father’s substance
abuse and the unsanitary conditions in the home. However, in April, 2017, the children
disclosed they had been sexually abused by Father. SCDJFS was especially alarmed as
the Agency had learned Father was the alleged perpetrator of sexual abuse involving a
young girl in a 2012 Summit County Department of Job and Family Service’s case. Child
2 underwent a forensic evaluation. Child 1 was interviewed and provided specific details
of Father rubbing the children’s vaginal areas, taking nude photographs of the children,
and forcing them to perform oral sex on him. Father told the children it was a secret.
After the police interviewed Father, Mother and Father left Ohio, and moved into the
paternal grandmother’s home in Florida.
{¶12} Prior to the allegations coming to light, Mother and Father visited the
children together on a weekly basis.
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[Cite as In re J.B., 2018-Ohio-1033.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: JUDGES: Hon. W. Scott Gwin, P.J. J.B., K.B. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.
Case Nos. 2017CA00177, 2017CA00178
OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case Nos. 2016 JCV 00618, 2016 JCV 00619
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 19, 2017
APPEARANCES:
For Appellant- Father For Appellee - SCDJFS
KATHALEEN O'BRIEN BRANDON J. WALTENBAUGH 1967 E. Maple Street Stark County Dep’t. of Job/Family Services North Canton, Ohio 44720 402 2nd Street SE Canton, Ohio 44702 Stark County, Case Nos. 2017CA00177, 2017CA00178 2
Hoffman, J.
{¶1} In Stark App. No. 2017CA00177, Appellant Rory Bowers (“Father”) appeals
the August 28, 2017 Judgment Entry and Findings of Fact and Conclusions of Law
entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated his parental rights, privileges, and responsibilities with respect to his minor
child (“Child 1”), and granted custody of the child to Appellee Stark County Department
of Job and Family Services (“SCDJFS”). In Stark App. No. 2017CA00178, Father appeals
a second August 28, 2017 Judgment Entry and Findings of Fact and Conclusions of Law
also entered by the Stark County Court of Common Pleas, Family Court Division, which
terminated his parental rights, privileges, and responsibilities to his other minor child
(“Child 2”), and granted permanent custody of the child to SCDJS.
STATEMENT OF THE CASE AND FACTS
{¶2} Melodi Bowers (“Mother”) and Father are the biological parents of Child 1
and Child 2. On August 1, 2016, SCDJFS filed complaints, alleging Child 1 and Child 2
were dependent, neglected, and/or abused children. The allegations in the complaints
centered on Mother’s severe drug use, her lack of parenting skills, the family’s lack of
appropriate housing, and the children’s poor hygiene. The trial court conducted a shelter
care hearing on the same day. After Mother and Father stipulated to a finding of probable
cause, the trial court found probable cause and placed the children in the emergency
temporary custody of SCDJFS. The trial court appointed Attorney Mary Lou Sekula as
attorney and guardian ad litem for the children. Stark County, Case Nos. 2017CA00177, 2017CA00178 3
{¶3} At an adjudicatory hearing on September 30, 2016, the trial court found the
children to be neglected and placed them in the temporary custody of SCDJFS. The trial
court approved and adopted the case plan.
{¶4} The trial court conducted a review hearing on January 27, 2017, and found
Father was still using illicit drugs, had recently been evicted, and was not progressing on
his case plan. The trial court again approved and adopted the case plan, and maintained
the status quo.
{¶5} At a review hearing on May 30, 2017, the trial court found the children had
recently disclosed Father had perpetrated persistent sexual abuse upon them in the past.
The trial court also found there was evidence to believe Mother knew about the abuse
and did nothing to prevent it from occurring or to protect the children. Further, Mother
and Father had fled to Florida. The trial court issued a No Contact Order, which also
included the children’s paternal grandparents.
{¶6} On June 16, 2017, SCDJFS filed motions for permanent custody, alleging
the children could not and should not be placed with Father within a reasonable amount
of time; Father had committed abuse against the children and the seriousness of the
abuse rendered placement of the children with Father a threat to their safety; Father had
abandoned the children; and it was in the children’s best interest to grant permanent
custody to the Agency. Attorney Sekula submitted her Guardian ad Litem Report on June
23, 2017, recommending the children be placed in the permanent custody of SCDJFS.
The trial court conducted a review hearing on June 27, 2017, and found Father was not
making progress on his case plan. Specifically, Father had not successfully completed
substance abuse treatment, had tested positive for illegal substances during the Stark County, Case Nos. 2017CA00177, 2017CA00178 4
pendency of the proceedings, had not make any progress in Goodwill classes, and had
fled to Florida after he was interviewed by police regarding the children’s disclosures of
sexual abuse.
{¶7} The trial court conducted a hearing on the motions for permanent custody
on August 10, 2017. Father did not attend the hearing. Counsel for Father stated he had
spoken with Father the day before the hearing and Father indicated he would be
unavailable to attend the hearing.
{¶8} Vickie Mitchell, the ongoing case worker, testified SCDJFS became
involved with the family after police responded to the home and found Mother on the front
lawn, “drooling and incoherent” and under the influence of drugs. Police administered
Narcan and Mother was transported to the hospital. Father was not present and could
not be reached. The children, who were in filthy clothing, were unsupervised. The home
was in deplorable condition with animal waste covering the floor and rotting food left out.
In addition, there were no working utilities and the home was infested with bugs.
{¶9} Father’s case plan required him to complete a psychiatric evaluation at
Northeast Ohio Behavior Health and follow all recommendations; engage in individual
counseling to address anger management and coping skills; participate in Goodwill after
he demonstrated an ability to abstain from all mood altering substances; participate with
Quest Recovery Services; attend at least two 12 step meetings a week; find a sponsor;
secure and maintain gainful employment; and secure appropriate housing.
{¶10} Father was inconsistent with individual counseling. Although he started
Goodwill classes, Father was terminated prior to completion due to violations of his
behavior contract which required him to be attentive in class and to submit to random Stark County, Case Nos. 2017CA00177, 2017CA00178 5
urine screens. Father fell asleep during classes and missed a drug screen. Father had
not submitted a urine screen since April, 2017. He did not find a sponsor or attend 12 step
meetings. Father’s services stopped after he and Mother relocated to Florida in April,
2017.
{¶11} SCDJF’s initial concerns centered upon Mother and Father’s substance
abuse and the unsanitary conditions in the home. However, in April, 2017, the children
disclosed they had been sexually abused by Father. SCDJFS was especially alarmed as
the Agency had learned Father was the alleged perpetrator of sexual abuse involving a
young girl in a 2012 Summit County Department of Job and Family Service’s case. Child
2 underwent a forensic evaluation. Child 1 was interviewed and provided specific details
of Father rubbing the children’s vaginal areas, taking nude photographs of the children,
and forcing them to perform oral sex on him. Father told the children it was a secret.
After the police interviewed Father, Mother and Father left Ohio, and moved into the
paternal grandmother’s home in Florida.
{¶12} Prior to the allegations coming to light, Mother and Father visited the
children together on a weekly basis. Visitation was moved from the Agency to Goodwill.
After the visits began at Goodwill, the children’s behavior regressed. Child 1 began to
complain of stomach aches, used baby talk, and defecated in her pants. Father interacted
with the children, however, the interactions Father did have were minimal and
inappropriate. Father would tickle the children, touch their faces, and brush back their
hair from behind their ears. Father did not bring food or snacks for the children to the
visits. Father last visited the children in April, 2017. Stark County, Case Nos. 2017CA00177, 2017CA00178 6
{¶13} Carrie Schnirring, a psychology assistant at Northeast Ohio Behavioral
Health, conducted a sexual abuse evaluation of Child 2. Child 2 stated the abuse
occurred in the living room after Father closed the curtain. Child 2 felt sad, scared, and
disgusted, and did not want to talk about the abuse. Child 2 was able to express what
happened using an anatomically correct diagram, stating Father rubbed her vagina over
her clothing with his hands. Child 2 told Schnirring about “starving”. Child 2 spoke of her
fear parents were dead as they could not be awakened. Father gave the children “bad
whoopings” with his hand or a belt. Father gave the children little white pills to help them
sleep. Schnirring diagnosed Child 2 with Adjustment Disorder with Mixed Anxiety and
Depressed Mood. Child 2 is currently involved in trauma therapy.
{¶14} Dr. Aimee Thomas, a licensed psychologist and professional clinical
counselor with Northeast Ohio Behavioral Health, completed parenting evaluations of
Father. Dr. Thomas diagnosed Father with Bipolar Disorder, Cocaine Abuse Disorder,
Alcohol Abuse Disorder, Rule out Opiate Abuse Disorder and codependency. Dr.
Thomas recommended Father abstain from all mood altering substances and undergo
comprehensive mental health treatment services which would entail prescribed
medication and talk therapy. Dr. Thomas noted, “If [Father’s] symptoms of Bipolar
disorder are not adequately addressed, he will be at high risk for relapse on drugs and
alcohol when experiencing depressive symptoms of mania.”
{¶15} During the best interest portion of the hearing, the evidence revealed the
children are Caucasian. They have no health or behavioral issues. Child 1 was slightly
delayed educationally in math and reading, but is now doing well and is on track in school.
Both children had significant tooth decay when they came into custody, but such has been Stark County, Case Nos. 2017CA00177, 2017CA00178 7
remedied. Both children see a counselor at least once each week. Initially, Child 1 was
very anxious about basic necessities such as food, utilities, and a clean shelter. Now that
the children are in a stable foster home, Child 1 feels safe. The children are placed in the
same foster home. Although the foster parents are not interested in adopting the children,
they are willing to care for the children until an adoptive home is found. Another couple
has expressed an interest in adopting the children.
{¶16} SCDJFS explored relative placement. Mother had no relatives who were
capable of caring for the children. Paternal grandmother initially expressed an interest in
placement, but refused to establish a relationship with the children. Paternal grandmother
was more concerned about when the children would be returned to Father. The children
love their parents and miss them. They are worried about Mother. However, the children
have clearly expressed a desire not to go back to their parents’ home.
{¶17} Via separate Judgment Entries and Findings of Fact and Conclusions of
Law filed August 28, 2017, the trial court terminated Father’s parental rights, privileges,
and responsibilities with respect to Child 1 and Child 2, and granted permanent custody
of the children to SCDJFS. The trial court found the children could not and should not be
placed with Father, and it was in the children’s best interest to grant permanent custody
to SCDJFS.
{¶18} It is from these judgment entries Father appeals.
{¶19} In Stark App. No. 2017CA00177 and Stark App. No. 2017CA00178, Father
raises identical assignments of error: Stark County, Case Nos. 2017CA00177, 2017CA00178 8
I. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND
FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR
AND CONVINCING EVIDENCE THAT GROUNDS EXISTED FOR
PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED IN GRANTING PERMANENT
AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTERESTS OF
THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY AND
SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶20} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
Stark App. No. 2017CA00177
I, II
Stark App. No. 2017CA00178
{¶21} We elect to address all of Father’s assignments of error in both appeals
together. Stark County, Case Nos. 2017CA00177, 2017CA00178 9
{¶22} 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 (Feb. 10, 1982), Stark App. No. CA5758. 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. (1978), 54 Ohio St.2d 279.
{¶23} 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.
{¶24} 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. Stark County, Case Nos. 2017CA00177, 2017CA00178 10
{¶25} 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.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶26} 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.
{¶27} In its August 28, 2017 Judgment Entries, the trial court found not only that
the children could not or should not be placed with either parent, but also that the children
had been abandoned.
{¶28} Father’s Brief only addresses the finding the children could not or should
not be placed with either parent. We find the evidence presented at the permanent
custody hearing supports the trial court's finding.
{¶29} Father failed to make significant progress on his case plan. Father’s case
plan required he complete a parenting evaluation; undergo drug and alcohol treatment,
comprehensive mental health treatment, and anger management; attend parenting
classes; maintain sobriety; engage in intensive outpatient treatment aftercare, relapse
prevention, and 12 step meetings; and obtain and maintain stable housing and Stark County, Case Nos. 2017CA00177, 2017CA00178 11
employment. Father completed a parenting evaluation. Father underwent a mental
health evaluation and was diagnosed with bipolar disorder, cocaine abuse disorder,
alcohol abuse disorder, and rule out opiate abuse disorder. Father did not complete
substance abuse treatment or comprehensive mental health treatment. Father was
terminated from parenting classes at Goodwill as he violated his behavior contract. Father
had not submitted a urine screen since April, 2017. He did not find a sponsor or attend
12 step meetings. Father did not obtain appropriate housing or stable employment.
Father’s services stopped after he and Mother relocated to Florida in April, 2017.
{¶30} Based upon the foregoing, we find the trial court did not err in finding the
children cannot and should not be placed with Father within a reasonable time. However,
even if we found the trial court erred in finding the children could not or should not be
placed with Father at this time or in the foreseeable future, such error would not require
reversal of the permanent custody determination under the two-issue rule. The trial court
had an alternate, independent ground for terminating parental rights, i.e., the children had
been abandoned.
{¶31} We now address the best interest portion of Father’s argument.
{¶32} 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 Stark County, Case Nos. 2017CA00177, 2017CA00178 12
for a legally secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody.
{¶33} The best interest of the child is the primary consideration in permanent
custody cases. In re Cunningham, 59 Ohio St.2d 100, 106 (1979).
{¶34} Father contends the trial court erred in finding it was in the best interest of
the children to grant permanent custody to SCDJFS.
{¶35} As set forth in our Statement of the Case and Facts, supra, the children are
Caucasian, and they have no health or behavioral issues. Child 1 was slightly delayed
educationally in math and reading, but is currently doing well and on track in school. Both
children see a counselor at least once each week. Initially, Child 1 was very anxious
about basic necessities, but feels safe as a result of the stability of the foster home. The
children are placed in the same foster home. Although the foster home is not interested
in adopting the children, they are willing to care for the children until an adoptive home is
found. Another couple recently met the children and expressed an interest in adopting
them.
{¶36} SCDJFS explored relative placement. Mother had no relatives who were
capable of caring for the children. Paternal grandmother initially expressed an interest in
placement, but refused to establish a relationship with the children. She did not believe
the children’s disclosures about Father’s sexual abuse of them. Paternal grandmother
intended to return the children to Father if she was given custody.
{¶37} The children have clearly expressed a desire not to go back to their parents’
home. They did not believe Mother would keep them safe from Father or be able to
provide for their basic needs. Stark County, Case Nos. 2017CA00177, 2017CA00178 13
{¶38} We find the trial court’s finding it was in the children’s best interest to grant
permanent custody to SCDJFS was supported by clear and convincing evidence.
{¶39} Father’s first and second assignments of error are overruled.
{¶40} The judgments of the Stark County Court of Common Pleas, Family Court
Division, are affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur