[Cite as In re P.B., 2017-Ohio-7692.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: P.B. C.A. Nos. 28630 T.B. 28637
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 15-01-28 DN 15-01-29
DECISION AND JOURNAL ENTRY
Dated: September 20, 2017
CARR, Judge.
{¶1} Appellants, J.B. (“Mother”) and E.B. (“Father”), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights
to two of their minor children and placed them in the permanent custody of Summit County
Children Services Board (“CSB”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of several minor children, but only
two of them are parties to this appeal: P.B., born July 25, 2005; and T.B., born July 20, 2006.
Father was not living with the family when this case began. Mother and the children were living
with Mother’s boyfriend, Tyler, who is the father of Mother’s youngest child.
{¶3} On January 15, 2015, CSB filed complaints alleging that P.B. was an abused and
dependent child and that T.B was a dependent child because the family was homeless and Tyler 2
had beaten P.B., leaving significant bruising on the child. Tyler was later convicted of child
endangering for injuring P.B. P.B. was adjudicated abused and T.B. was adjudicated dependent.
Both children were allowed to remain in Mother’s custody under an order of protective
supervision. The trial court ordered that Tyler have no contact with the children.
{¶4} Five months later, CSB moved to remove the children from Mother’s custody
because they had witnessed an incident of domestic violence between Mother and Tyler. CSB
learned that Mother had continued to expose the children to Tyler, in violation of the no contact
order, and that Tyler had perpetrated violence against both children and Mother. The children
engaged in counseling during this case to address the traumas in their lives. P.B., in particular,
suffered from severe depression and continued to blame himself for his family’s situation. P.B.
was hospitalized for psychiatric treatment several times during this case.
{¶5} P.B. and T.B. were removed from Mother’s custody and later placed in the
temporary custody of the maternal grandmother under an order of protective supervision. Over
the next several months, Father continued to have no involvement in the case and Mother failed
to comply with many of the requirements of the case plan. After the children lived with her for
approximately nine months, the grandmother notified CSB that she could not provide them with
a permanent home.
{¶6} The children were placed in the temporary custody of CSB and later lived with a
paternal aunt in South Carolina. That placement disrupted shortly afterward, however, because
the aunt was not able to address P.B.’s serious mental health and behavioral problems.
{¶7} Two months before the children were placed with the aunt, Mother ceased all
contact with the children, CSB, the guardian ad litem, and the juvenile court. She had
outstanding warrants for her arrest and would later admit that she was using heroin and other 3
illegal drugs during that period. Mother did not reinitiate contact with CSB or the children until
after CSB moved for permanent custody.
{¶8} On October 7, 2016, CSB moved for permanent custody of P.B. and T.B. because
no other relatives were available to provide them with a suitable home. CSB alleged that the
parents had failed to remedy the conditions that caused the children to be placed outside the
home and/or demonstrated a lack of commitment to the children, and that permanent custody
was in the children’s best interest. R.C. 2151.414(E)(1) and (4); R.C. 2151.414(D). Mother
alternatively requested legal custody and Father supported her motion.
{¶9} Following the final dispositional hearing, the trial court found that CSB had
proven both grounds under R.C. 2151.414(E) and that permanent custody was in their best
interest. Consequently, it terminated parental rights and placed the children in the permanent
custody of CSB.
{¶10} The parents separately appealed and their appeals were later consolidated. Their
assignments or error will be addressed together because they are closely related.
II.
MOTHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT’S DECISION GRANTING THE MOTION FOR PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR IN PLACING THE CHILDREN IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 4
{¶11} Both parents argue that the trial court’s permanent custody decision was not
supported by the evidence. They assert that the trial court should have instead returned the
children to Mother’s legal custody.
{¶12} Before a juvenile court may terminate parental rights and award permanent
custody of children to a proper moving agency it must find clear and convincing evidence of
both prongs of the permanent custody test: (1) that the children are abandoned; orphaned; have
been in the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; they or another child in a parent’s custody have been adjudicated abused, neglected, or
dependent on three separate occasions; or they cannot be placed with either parent within a
reasonable time or should not be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶13} The trial court found that CSB satisfied the first prong of the test because the
children could not be placed with either parent within a reasonable time or should not be placed
with them because the parents had failed to substantially remedy the conditions that caused the
children to be removed from Mother’s custody and continued to be placed outside the home and
the parents had demonstrated a lack of commitment to the children. See R.C. 2151.414(E)(1)
and (E)(4). Both of those findings were supported by clear and convincing evidence.
{¶14} Father had little involvement in this case, which supported the trial court’s finding
that he failed to remedy the conditions that caused the children to be placed outside the home and
that he demonstrated a lack of commitment to them. During the first two years of the case, 5
Father did not attend most court hearings, did not communicate with CSB or work on the case
plan, and he rarely visited the children.
{¶15} Although Mother was more actively involved in this case than Father, the
evidence was not disputed that Mother had more than two years to work on the case plan but she
made minimal progress toward reunification and also demonstrated a lack of commitment to the
children. This case began because P.B. had been the victim of domestic violence by Tyler.
Although Mother agreed to keep Tyler away from the children so that she could retain custody of
them, she failed to abide by the no contact order. The children were later removed from
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[Cite as In re P.B., 2017-Ohio-7692.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: P.B. C.A. Nos. 28630 T.B. 28637
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 15-01-28 DN 15-01-29
DECISION AND JOURNAL ENTRY
Dated: September 20, 2017
CARR, Judge.
{¶1} Appellants, J.B. (“Mother”) and E.B. (“Father”), appeal from a judgment of the
Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights
to two of their minor children and placed them in the permanent custody of Summit County
Children Services Board (“CSB”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of several minor children, but only
two of them are parties to this appeal: P.B., born July 25, 2005; and T.B., born July 20, 2006.
Father was not living with the family when this case began. Mother and the children were living
with Mother’s boyfriend, Tyler, who is the father of Mother’s youngest child.
{¶3} On January 15, 2015, CSB filed complaints alleging that P.B. was an abused and
dependent child and that T.B was a dependent child because the family was homeless and Tyler 2
had beaten P.B., leaving significant bruising on the child. Tyler was later convicted of child
endangering for injuring P.B. P.B. was adjudicated abused and T.B. was adjudicated dependent.
Both children were allowed to remain in Mother’s custody under an order of protective
supervision. The trial court ordered that Tyler have no contact with the children.
{¶4} Five months later, CSB moved to remove the children from Mother’s custody
because they had witnessed an incident of domestic violence between Mother and Tyler. CSB
learned that Mother had continued to expose the children to Tyler, in violation of the no contact
order, and that Tyler had perpetrated violence against both children and Mother. The children
engaged in counseling during this case to address the traumas in their lives. P.B., in particular,
suffered from severe depression and continued to blame himself for his family’s situation. P.B.
was hospitalized for psychiatric treatment several times during this case.
{¶5} P.B. and T.B. were removed from Mother’s custody and later placed in the
temporary custody of the maternal grandmother under an order of protective supervision. Over
the next several months, Father continued to have no involvement in the case and Mother failed
to comply with many of the requirements of the case plan. After the children lived with her for
approximately nine months, the grandmother notified CSB that she could not provide them with
a permanent home.
{¶6} The children were placed in the temporary custody of CSB and later lived with a
paternal aunt in South Carolina. That placement disrupted shortly afterward, however, because
the aunt was not able to address P.B.’s serious mental health and behavioral problems.
{¶7} Two months before the children were placed with the aunt, Mother ceased all
contact with the children, CSB, the guardian ad litem, and the juvenile court. She had
outstanding warrants for her arrest and would later admit that she was using heroin and other 3
illegal drugs during that period. Mother did not reinitiate contact with CSB or the children until
after CSB moved for permanent custody.
{¶8} On October 7, 2016, CSB moved for permanent custody of P.B. and T.B. because
no other relatives were available to provide them with a suitable home. CSB alleged that the
parents had failed to remedy the conditions that caused the children to be placed outside the
home and/or demonstrated a lack of commitment to the children, and that permanent custody
was in the children’s best interest. R.C. 2151.414(E)(1) and (4); R.C. 2151.414(D). Mother
alternatively requested legal custody and Father supported her motion.
{¶9} Following the final dispositional hearing, the trial court found that CSB had
proven both grounds under R.C. 2151.414(E) and that permanent custody was in their best
interest. Consequently, it terminated parental rights and placed the children in the permanent
custody of CSB.
{¶10} The parents separately appealed and their appeals were later consolidated. Their
assignments or error will be addressed together because they are closely related.
II.
MOTHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT’S DECISION GRANTING THE MOTION FOR PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR IN PLACING THE CHILDREN IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 4
{¶11} Both parents argue that the trial court’s permanent custody decision was not
supported by the evidence. They assert that the trial court should have instead returned the
children to Mother’s legal custody.
{¶12} Before a juvenile court may terminate parental rights and award permanent
custody of children to a proper moving agency it must find clear and convincing evidence of
both prongs of the permanent custody test: (1) that the children are abandoned; orphaned; have
been in the temporary custody of the agency for at least 12 months of a consecutive 22-month
period; they or another child in a parent’s custody have been adjudicated abused, neglected, or
dependent on three separate occasions; or they cannot be placed with either parent within a
reasonable time or should not be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶13} The trial court found that CSB satisfied the first prong of the test because the
children could not be placed with either parent within a reasonable time or should not be placed
with them because the parents had failed to substantially remedy the conditions that caused the
children to be removed from Mother’s custody and continued to be placed outside the home and
the parents had demonstrated a lack of commitment to the children. See R.C. 2151.414(E)(1)
and (E)(4). Both of those findings were supported by clear and convincing evidence.
{¶14} Father had little involvement in this case, which supported the trial court’s finding
that he failed to remedy the conditions that caused the children to be placed outside the home and
that he demonstrated a lack of commitment to them. During the first two years of the case, 5
Father did not attend most court hearings, did not communicate with CSB or work on the case
plan, and he rarely visited the children.
{¶15} Although Mother was more actively involved in this case than Father, the
evidence was not disputed that Mother had more than two years to work on the case plan but she
made minimal progress toward reunification and also demonstrated a lack of commitment to the
children. This case began because P.B. had been the victim of domestic violence by Tyler.
Although Mother agreed to keep Tyler away from the children so that she could retain custody of
them, she failed to abide by the no contact order. The children were later removed from
Mother’s custody because she continued to expose them to Tyler, who was physically abusive to
the children and her.
{¶16} Mother obtained a psychological assessment, during which she revealed that she
had a long history as a victim of domestic violence and that she suffered from severe depression,
including suicidal ideation. Mother was ordered to attend ongoing counseling, but she
sporadically attended sessions for only two months.
{¶17} Moreover, Mother failed to maintain consistent contact with CSB or the children.
One and one-half years into this case, Mother dropped out of counseling and disappeared for a
period of several months. After CSB moved for permanent custody, Mother reinitiated contact
with CSB and the children. Mother disclosed that she had been using heroin and other illegal
drugs, an obstacle to reunification that had not been part of the case plan because CSB was not
aware that Mother had a substance abuse problem. At the hearing, the caseworker expressed
concern that Mother’s decision-making skills had only regressed during the two and one-half
years that this case was pending. Consequently, the parents have failed to demonstrate that the 6
trial court’s first-prong findings under R.C. 2151.414(E)(1) and (4) were not supported by the
evidence.
{¶18} The parents also argue that the trial court’s best interest finding was not supported
by the evidence. When determining the children’s best interest under R.C. 2151.414(D), the
juvenile court must consider all relevant factors, including the interaction and interrelationships
of the children, their wishes, their custodial history, and the need for permanence in their lives.
See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.
{¶19} The children did not have consistent interaction with their parents during this
case. After the children were removed from Mother’s custody, neither parent visited them
regularly. Although Mother resumed weekly visits with the children approximately one month
after CSB moved for permanent custody, the evidence was not disputed that she had no contact
with them for several months before that time. Father does not dispute that he did not visit the
children or call them for 19 months prior to the hearing.
{¶20} Both children had expressed their desire to return to Mother’s custody, but the
guardian ad litem opined that permanent custody was in their best interest because Mother had
not adequately resolved her parenting problems. P.B. wanted to live with Mother, but he also
expressed concern that she would not be able to care for him, given her history. Mother had not
protected the children from Tyler, nor had she assured that P.B. attended counseling to address
his serious depression. Several witnesses explained that P.B. had assumed the role of caretaker
for his brother and that he suffered from serious guilt about his injuries that caused CSB
involvement with his family.
{¶21} After their removal from Mother’s custody, the children had spent more than two
years moving from one temporary placement to another, which had only exacerbated P.B.’s 7
mental health problems. The children were in need of a legally secure permanent placement.
Neither parent was prepared to provide them with a suitable permanent home and CSB had been
unable to find any relatives who were willing to do so. The trial court reasonably concluded that
a legally secure permanent placement would only be achieved by placing them in the permanent
{¶22} The parents have failed to demonstrate that the trial court’s permanent custody
decision was not supported by clear and convincing evidence. Their assignments of error are
overruled.
III.
{¶23} The assignments of error of Mother and Father are overruled. The judgment of
the Summit County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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. 8
Costs taxed to Appellants.
DONNA J. CARR FOR THE COURT
HENSAL, P. J. CALLAHAN, J. CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
AVIVA WILCHER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
GINA D’AURELIO, Attorney at Law, for Appellee.
JOSEPH KERNAN, Guardian ad Litem.