[Cite as In re R.B., 2022-Ohio-1705.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
R.B., et al. : CASE NO. CA2022-01-003 . CA2022-01-004 : OPINION : 5/23/2022
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. JN2018-0089; JN2018-0090
Sebaly Shillito & Dyer, and Brian A. Muenchenbach and Meghan E. Richmond, for appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee.
Legal Aid Society of Southwest Ohio, LLC, and Jonathan W. Ford and Emily Edwards, guardian ad litem.
S. POWELL, J.
{¶ 1} Appellant ("Mother") appeals from the decision of the Butler County Court of
Common Pleas, Juvenile Division, granting permanent custody of her two children, R.B. Butler CA2022-01-003 CA2022-01-004
and B.C., to appellee, Butler County Department of Job and Family Services ("BCDJFS").
For the reasons outlined below, we affirm the juvenile court's decision.
The Parties
{¶ 2} Mother is the biological mother of the two children at issue in this case, boys,
R.B., born September 24, 2009, and B.C., born August 25, 2014. Neither R.B.'s father nor
B.C.'s father are parties to this appeal.
Facts and Procedural History
{¶ 3} On March 13, 2018, BCDJFS filed separate complaints alleging both R.B. and
B.C. were abused and dependent children. The record indicates BCDJFS filed these two
complaints after it received a referral alleging R.B. and B.C. had been sexually abused and
the victims of sex trafficking by Mother and her then boyfriend, J.H. This includes instances
where it was alleged the then eight-year-old R.B. was forced to have vaginal and anal
intercourse with his 11-year-old cousin. This is in addition to BCDJFS alleging Mother had
admittedly used several illegal substances while R.B. and B.C. were in her care, including
methamphetamine, heroin, and marijuana, and that an officer with the Middletown Police
Department had discovered a text message from B.C.'s father threatening to kill R.B. The
record indicates Mother also admitted to having significant mental health issues that had
resulted in Mother attempting suicide on more than one occasion.
{¶ 4} On July 2, 2018, the juvenile court adjudicated both R.B. and B.C. as
dependent children. That same day, the juvenile court held dispositional hearings for R.B.
and B.C. Once those dispositional hearings concluded, the juvenile court issued two
dispositional decisions granting temporary custody of R.B. and B.C. to BCDJFS. There is
no dispute that, despite the 90-day time requirement set forth in the now former R.C.
2151.35(B)(1), more than 90 days had passed between when BCDJFS filed its complaints
-2- Butler CA2022-01-003 CA2022-01-004
alleging R.B. and B.C. were abused and dependent children and when the juvenile court
held its dispositional hearings for R.B. and B.C.1 There is also no dispute that Mother did
not object to the juvenile court holding its dispositional hearings for R.B. and B.C. outside
of that 90-day timeframe. There is further no dispute that neither Mother, nor either R.B.'s
or B.C.'s fathers, appealed from the juvenile court's dispositional decisions granting
temporary custody of R.B. and B.C. to BCDJFS.
{¶ 5} On January 23, 2020, BCDJFS filed motions for permanent custody of both
R.B. and B.C. In its motions for permanent custody, BCDJFS noted that R.B. and B.C. had
at that point been in its temporary custody for 12 or more months of a consecutive 22-month
period. After BCDJFS filed its motions for permanent custody, a three-day hearing on
BCDJFS' motions was held before a juvenile court magistrate. This three-day hearing
ultimately concluded on February 3, 2021. On the second day of that three-day hearing,
which was held on October 6, 2020, Mother orally moved the magistrate to dismiss the
abuse and dependency complaints DCDJES had filed with the juvenile court on March 13,
2018. To support her motion, Mother argued the juvenile court lacked subject-matter
jurisdiction to proceed once it failed to hold its dispositional hearings for R.B. and B.C. within
the 90-day time limit set forth by former R.C. 2151.35(B)(1). Upon hearing arguments from
both parties, the magistrate denied Mother's motion from the bench.
{¶ 6} On March 15, 2021, Mother filed two written motions requesting the juvenile
court dismiss the March 13, 2018 complaints regarding R.B. and B.C. To support these
motions, Mother set forth the same arguments she had previously raised to the magistrate
in support of her October 6 oral motion to dismiss, i.e., the juvenile court lacked subject-
1. Based on this court's calculations, there were 111 days that elapsed between March 13, 2018 and July 2, 2018. -3- Butler CA2022-01-003 CA2022-01-004
matter jurisdiction to proceed once it failed to hold its dispositional hearings for R.B. and
B.C. within the 90-day time limit set forth by former R.C. 2151.35(B)(1). Approximately
three weeks later, on April 5, 2021, the magistrate issued two separate orders denying
Mother's motions to dismiss in both R.B.'s and B.C.'s cases. In so holding, the magistrate
found there was at that time no case law supporting Mother's claim that the juvenile court's
failure to abide by the 90-day limit set forth in former R.C. 2151.35(B)(1) "can act to deprive
a court of subject matter jurisdiction." The magistrate also determined that there was
nothing at that time indicating "the time limits in Section 2151.3 et seq. are jurisdictional in
nature."
{¶ 7} On April 18, 2021, Mother filed motions requesting the juvenile court "set
aside" the magistrate's decisions denying her motions to dismiss R.B.'s and B.C.'s cases.
The next day, April 19, 2021, the magistrate issued separate decisions recommending the
juvenile court grant BCDJFS' motions for permanent custody of R.B. and B.C. In reaching
these decisions, the magistrate noted that Mother had abandoned both R.B. and B.C. given
her lack of any contact with either child for more than a year after they were removed from
her care. The magistrate also noted within its decisions that both R.B. and B.C. had a "solid
nurturing relationship with [their] foster parents" and that R.B.'s and B.C.'s foster parents
were interested in adoption if permanent custody was granted to BCDJFS. The magistrate
also stated within each of its decisions, the following:
In conclusion, it is clear that mother had an extremely difficult and abusive childhood. It appears that her history followed her as she attempted to be a mother for [R.B. and B.C.]. She clearly loves [both R.B. and B.C.], but her personal issues, such as substance abuse and mental health, prevented her from putting that love into appropriate action when [they were] in her care. As a result, [R.B. and B.C. were] where [they were]; physically, emotionally, and mentally, when [they were] removed from her care.
-4- Butler CA2022-01-003 CA2022-01-004
Mother has made strides towards becoming healthy and independent. What she has done so far in that regard has not been easy and she appears to be turning her life around. * * * In terms of her relationship with [R.B. and B.C.], however, the damage has been done. Her absence in [their lives] for over a year after [they were] removed from her care only served to exacerbate that damage.
{¶ 8} On May 3, 2021, Mother filed objections to the magistrate's decisions in both
R.B.'s and B.C.'s cases. Mother later supplemented her objections to the magistrate's
decisions on July 22, 2021. As part of her objections, Mother alleged the juvenile court
lacked subject-matter jurisdiction and/or the legal authority to grant permanent custody of
R.B. and B.C. to BCDJFS "because it failed to dispose of the case[s] within 90 days of filing
* * *." The juvenile court issued decisions overruling Mother's objections to both of the
magistrate's decisions on November 23, 2021. The juvenile court also denied Mother's
motions requesting the juvenile court "set aside" the magistrate's decisions denying her
motions to dismiss. The following month, on December 20, 2021, Mother filed timely notices
of appeal from both juvenile court's decisions overruling her objections to the magistrate's
decisions in R.B.'s and B.C.'s cases. Mother raises three assignments of error for review.
Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT LACKED JURISDICTION TO TERMINATE
APPELLANT'S PARENTAL RIGHTS.
{¶ 10} In her first assignment of error, Mother argues the juvenile court erred by
denying her motion to dismiss, alleging the juvenile court lacked subject-matter jurisdiction
to proceed once the juvenile court failed to hold the required dispositional hearings for R.B.
and B.C. within the 90-day time limit set forth in the now former R.C. 2151.35(B)(1). We
disagree.
{¶ 11} "Former R.C. 2151.35(B)(1) affects a juvenile court's authority over a
-5- Butler CA2022-01-003 CA2022-01-004
particular case." In re H.M.M., 1st Dist. Hamilton No. C-210590, 2022-Ohio-473, ¶ 16.
Pursuant to that statute:
If the court at an adjudicatory hearing determines that a child is an abused, neglected, or dependent child, the court shall not issue a dispositional order until after the court holds a separate dispositional hearing. The court may hold the dispositional hearing for an adjudicated abused, neglected, or dependent child immediately after the adjudicatory hearing if all parties were served prior to the adjudicatory hearing with all documents required for the dispositional hearing. The dispositional hearing may not be held more than thirty days after the adjudicatory hearing is held. The court, upon the request of any party or the guardian ad litem of the child, may continue a dispositional hearing for a reasonable time not to exceed the time limits set forth in this division to enable a party to obtain or consult counsel. The dispositional hearing shall not be held more than ninety days after the date on which the complaint in the case was filed.
If the dispositional hearing is not held within the period of time required by this division, the court, on its own motion or the motion of any party or the guardian ad litem of the child, shall dismiss the complaint without prejudice.2
{¶ 12} The Ohio Supreme Court was recently tasked with determining whether that
90-day time limit set forth in the now former R.C. 2151.35(B)(1) was mandatory or merely
discretionary. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995. Upon review, the Ohio
Supreme Court determined that the 90-day time limit was mandatory, not discretionary,
given the statutory language contained an "express limitation on a juvenile court's authority
for failure to comply with a statutory deadline." Id. at ¶ 23. In so holding, the Ohio Supreme
Court noted that "[i]f the General Assembly had intended for a juvenile court to proceed with
dispositional determinations beyond the 90-day time limit in R.C. 2151.35(B)(1), it could
have added language to that effect." Id. at ¶ 24. Therefore, because former R.C.
2. We note that, effective April 12, 2021, the statutory language found in R.C. 2151.35(B)(1) was amended "to allow the juvenile court under certain circumstances an additional 45 days beyond the current 90-day limit in which to hold the dispositional hearing before the complaint must be dismissed without prejudice." In re K.R., 9th Dist. Summit No. 29815, 2021-Ohio-495, ¶ 12, fn. 2. -6- Butler CA2022-01-003 CA2022-01-004
2151.35(B)(1) did not contain any such language that would allow the juvenile court to act
beyond the 90-day time limit, the Ohio Supreme Court determined that "we must apply the
express mandate in R.C. 2151.35(B)(1) requiring dismissal of the complaints." Id. at ¶ 25.
The Ohio Supreme Court also determined that, because the statutory language is "explicit"
in requiring dismissal after the expiration of the 90-day time limit, "there can be no implicit
waiver of the 90-day limit." Id. at ¶ 26.
{¶ 13} Following the Ohio Supreme Court's decision in In re K.M., this court decided
a case where a father argued the juvenile court erred by failing to dismiss complaints
alleging three children were abused, neglected, or dependent children given the juvenile
court's failure to hold dispositional hearings for any of the three children within the 90-day
time limit set forth in former R.C. 2151.35(B)(1).3 In re K.K., 12th Dist. Butler Nos. CA2020-
12-130, CA2021-01-002, and CA2021-01-003, 2021-Ohio-1689, ¶ 7. Applying the Ohio
Supreme Court's holding in In re K.M., 2020-Ohio-995, this court agreed and found "the
juvenile court erred by not dismissing the complaints without prejudice once it failed to hold
the dispositional hearings [for the three children at issue] within 90 days as required by R.C.
2151.35(B)(1)." Id. at ¶ 21. In so holding, this court noted that the Ohio Supreme Court's
3. The Ohio Supreme Court has accepted for review this court's decision in In re K.K., 2021-Ohio-1689. See In re K.K., 164 Ohio St.3d 1440, 2021-Ohio-3233. The two issues accepted for review by the Ohio Supreme Court are:
1. The language requiring dismissal for violations of the 90-day time limit set forth in R.C. 2151.35(B)(1) is not self-executing since it requires the filing of a motion by the court, by the parties to the case, or by the child's guardian ad litem. As such, the 90-day time limit is not jurisdictional.
2. The decision of the Twelfth District Court of Appeals in In re: K.K., 12th Dist. Butler Nos. CA2020-12-130, CA2021-01-002, & CA2021-10-003, 2021- Ohio-1689, cannot be applied retroactively to a permanency case that has resulted in a final, appealable order and is not pending on appeal.
Oral argument was held on the matter on March 30, 2022. See Ohio Supreme Court Case Information, Case No. 2021-0822, available at https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2021/0822 (last accessed May 3, 2022). -7- Butler CA2022-01-003 CA2022-01-004
decision in In re K.M.:
specifically states that a parent cannot implicitly waive the juvenile court's requirement to hold the dispositional hearing within 90 days of the filing of the complaint and that a juvenile court must dismiss the complaint without prejudice should it fail to hold the dispositional hearing within the 90-day time frame, whether or not any party raises the issue.
Id. at ¶ 14.
{¶ 14} The facts in In re K.K. are nearly identical to the facts at issue here. In this
case, just like for the three children at issue in In re K.K., the juvenile court did not hold the
dispositional hearings for R.B. and B.C. within the 90-day time limit in former R.C.
2151.35(B)(1). Moreover, just like the mother and father in In re K.K., neither Mother nor
either R.B.'s or B.C.'s fathers in this case expressly waived that 90-day time limit. However,
although dealing with nearly identical facts, we believe In re K.K. incorrectly determined that
a juvenile court is divested of subject-matter jurisdiction to proceed when the juvenile court
does not hold the necessary dispositional hearing(s) within 90 days as required by former
R.C. 2151.35(B)(1). See id., 2021-Ohio-1689 at ¶ 20 (holding a challenge to the juvenile
court's authority to proceed after the juvenile court failed to hold a dispositional hearing
within 90 days as required by former R.C. 2151.35[B][1] can be raised at any time, even for
the first time on appeal, given the well-settled principle that "attacks on subject-matter
jurisdiction cannot be forfeited"). Therefore, for the reasons outlined below, and to the
extent that this court's decision in In re K.K., either expressly or implicitly, determined that
a juvenile court is divested of subject-matter jurisdiction to proceed when the juvenile court
does not hold the necessary dispositional hearing(s) within 90 days of the filing of a
complaint alleging that a child is abused, neglected, or dependent as required by the now
former R.C. 2151.35(B)(1), that part of our decision is overruled and will no longer be
followed by this court.
-8- Butler CA2022-01-003 CA2022-01-004
{¶ 15} "Subject-matter jurisdiction of a court connotes the power to hear and decide
a case upon its merits." Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972). "Ohio's juvenile
courts are statutory courts, created by the General Assembly." In re Z.R., 144 Ohio St.3d
380, 2015-Ohio-3306, ¶ 14. Because of this, "[j]uvenile courts are courts of limited
jurisdiction whose powers are created solely by statute." In re S.M., 12th Dist. Madison No.
CA2009-02-008, 2009-Ohio-4677, ¶ 14, citing Carnes v. Kemp, 104 Ohio St.3d 629, 2004-
Ohio-7107, ¶ 25. "The termination of parental rights is statutory and governed by R.C.
2151.414." In re J.G., 8th Dist. Cuyahoga No. 110745, 2022-Ohio-827, ¶ 27. Thus,
because it is Ohio's juvenile courts that have the power to terminate an individual's parental
rights in accordance with R.C. 2151.414, and because the plain language of R.C.
2151.35(B)(1) only requires a juvenile court to dismiss the complaint without prejudice
should the juvenile court fail to hold a dispositional hearing within the required 90-day time
frame set forth within that statute, it was improper for this court to find a juvenile court is
divested of subject-matter jurisdiction to proceed when the juvenile court does not abide by
the requirements of former R.C. 2151.35(B)(1). To hold otherwise, as we did in In re K.K.,
ignores the plain language found in former R.C. 2151.35(B)(1), as well as the ultimate
outcome in Ohio Supreme Court's decision in In re K.M., 2020-Ohio-995, requiring a
juvenile court to dismiss a case without prejudice if the juvenile court fails to conduct a
dispositional hearing within 90 days of the filing of a complaint alleging that a child is
abused, neglected, or dependent.
{¶ 16} Our discussion of In re K.K. does not end there, however. This is because it
was also improper for this court to reject the state's argument alleging the doctrine of res
judicata applied given that no appeal was taken from the juvenile court's dispositional
decisions regarding the three children at issue in that case. Id. at ¶ 18-20. In so holding,
-9- Butler CA2022-01-003 CA2022-01-004
we note that there are at least two Ohio appellate courts that have already found the
doctrine of res judicata should apply in circumstances such as these. We agree with both
of these Ohio appellate courts. This is because, as these other two Ohio appellate courts
have explained, any error the juvenile court made in proceeding on the dependency
complaint after the 90-day time limit expired rendered the juvenile courts' resulting decisions
voidable, not void. See In re G.T., 5th Dist. Richland No. 2021 CA 0066, 2022-Ohio-654, ¶
41, 43 ("Mother could have argued that the trial court violated R.C. 2151.35[B][1] in a direct
appeal from the court's June 6, 2019 dispositional order, but she did not timely appeal the
dispositional order. Thus, res judicata bars her from raising the issue in this appeal"); and
In re L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516, ¶ 19, 21 ("[h]ere, the juvenile
court adjudicated L.S. a dependent child, and the court issued a R.C. 2151.353[A]
dispositional order on April 30, 2019. The parents could have raised the claim that the
juvenile court violated R.C. 2151.35[B][1] in a direct appeal from that order, but neither
parent timely appealed the dispositional order after the juvenile court overruled Mother's
objections to the magistrate's dispositional decision. * * * Thus, res judicata bars the parents
from raising the issue in this appeal, and we overrule the third assignment of error").
Therefore, to the extent that this court's decision in In re K.K., either expressly or implicitly,
determined that the doctrine of res judicata did not apply even though no appeal was taken
from the juvenile court's dispositional decisions, that part of our decision is also overruled
and will no longer be followed by this court.
{¶ 17} In reaching this decision, we note the generally well-established principle that
"'when a specific action is within a court's subject-matter jurisdiction, any error in the
exercise of that jurisdiction renders the court's judgment voidable, not void.'" In re R.R., 3d
Dist. Logan No. 8-20-26, 2021-Ohio-1620, ¶ 34, quoting State v. Harper, 160 Ohio St.3d
- 10 - Butler CA2022-01-003 CA2022-01-004
480, 2020-Ohio-2913, ¶ 26; In re Settlement for Fischer, 5th Dist. Morgan No. 19AP0002,
2019-Ohio-4749, ¶ 13 ("judgments that are erroneous for other than jurisdictional reasons
are merely voidable"). "If a judgment entry is voidable, then it must be challenged on direct
appeal, or else principles of res judicata will apply * * *." State ex rel. Romine v. McIntosh,
162 Ohio St.3d 501, 2020-Ohio-6826, ¶ 12. This is because, "[r]es judicata prevents the
litigation of issues that were raised on appeal or could have been raised on appeal." In re
K.B., 10th Dist. Franklin No. 05AP-783, 2006-Ohio-3104, ¶ 8. Therefore, "'any issue that
could have been raised on direct appeal and was not is res judicata and not subject to
review in subsequent proceedings.'" In re Z.D., 9th Dist. Summit No. 24295, 2008-Ohio-
6436, ¶ 5, quoting State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, ¶ 16.
{¶ 18} "'[F]inality requires that there be some end to every lawsuit, thus producing
certainty in the law and public confidence in the system's ability to resolve disputes.'"
Bowman v. Bowman, 12th Dist. Warren No. CA98-06-070, 1999 Ohio App. LEXIS 49, *11
(Jan. 11, 1999), quoting Strack v. Pelton, 70 Ohio St.3d 172, 175 (1994). "'Res judicata
promotes the principle of finality of judgments by requiring plaintiffs to present every
possible ground for relief in the first action.'" In re S.J., 9th Dist. Summit No. 23199, 2006-
Ohio-6381, ¶ 14, quoting Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, ¶ 5. "This
doctrine has been held to apply to appellate proceedings in both criminal and civil cases."
In re A.S., 3d Dist. Allen Nos. 1-12-01 and 1-12-02, 2012-Ohio-3197, ¶ 52. This includes
permanent cases regarding terminating of an individual's parental rights under R.C.
2151.414. See, e.g., In re J.D., 12th Dist. Fayette No. CA2017-02-002, 2017-Ohio-4229, ¶
17 (finding in a permanent custody case that "the children's dependency is res judicata and
Mother is barred from challenging those findings in the context of this appeal").
{¶ 19} "[A] dependency adjudication followed by a disposition awarding or continuing
- 11 - Butler CA2022-01-003 CA2022-01-004
temporary custody of a child to a public services agency constitutes a final appealable
order." In re W.F., 12th Dist. Brown No. CA2014-01-002, 2014-Ohio-2892, ¶ 11, citing In
re Murray, 52 Ohio St.3d 155 (1990). This is, in fact, a well-established principle. In re
C.G., 12th Dist. Preble Nos. CA2007-03-005 and CA2007-03-006, 2007-Ohio-4361, ¶ 11
("[i]It is well-established that a dependency adjudication followed by a disposition awarding
or continuing temporary custody of a child to a public children services agency constitutes
a final appealable order"). Mother, therefore, could have, and possibly should have,
appealed from the juvenile court's dispositional decisions in this case arguing it was error
for the juvenile court to do anything other than journalize the dismissal of R.B.'s and B.C.'s
cases without prejudice given its failure to hold a dispositional hearing for either R.B. or
B.C. within the 90-day time limit set forth by the now former R.C. 2151.35(B)(1). See In re
H.M.M., 2022-Ohio-473 at ¶ 34 (after the 90-day deadline expires "a juvenile court has no
authority to issue further orders except to journalize the dismissal of the case without
prejudice"); and In re D.G., 1st Dist. Hamilton Nos. C-200359 and C-200371, 2021-Ohio-
429, ¶ 26 ("a juvenile court that force[s] the parties to continue litigating past the 90 day
dispositional deadline exceed[s] its statutory authority").
{¶ 20} This would certainly be true here had Mother raised this challenge to the
juvenile court prior to the juvenile court holding its dispositional hearings for R.B. and B.C.
on July 2, 2018, approximately three weeks after the 90-day dispositional deadline set forth
in R.C. 2151.35(B)(1) had already expired. Mother, however, did not raise this issue at any
time prior to or during R.B.'s and B.C.'s dispositional hearings. Mother also did not appeal
from the juvenile court's dispositional decisions regarding either R.B. or B.C. The same is
true as it relates to R.B.'s and B.C.'s fathers. Mother instead raised this challenge for the
first time over two years later during the second day of the three-day hearing held on
- 12 - Butler CA2022-01-003 CA2022-01-004
BCDJFS' permanent custody motions. Therefore, because Mother could have, but did not,
appeal from the juvenile court's dispositional decisions arguing the juvenile court had
violated R.C. 2151.35(B)(1) by failing to conduct dispositional hearings for R.B. and B.C.
within 90 days of BCDJFS filing its complaints alleging R.B. and B.C. were neglected and
dependent children, we find res judicata now bars Mother from raising that issue in this
appeal. For these reasons, Mother's first assignment of error lacks merit and is overruled.
Assignment of Error No. 2:
{¶ 21} THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO APPELLANT'S
PREJUDICE WHEN IT PROHIBITED MOTHER FROM EXPLORING A WITNESS'
POTENTIAL BIAS.
{¶ 22} In her second assignment of error, Mother argues the juvenile court's decision
granting permanent custody to BCDJFS should be reversed when considering the juvenile
court refused to allow Mother to "explore the potential bias" of the caseworker on cross-
examination. We disagree.
{¶ 23} "Under Evid.R. 616(A), any witness can be impeached by a showing of
prejudice, bias, interest, or motive through examination or by extrinsic evidence." In re
Johnson, 12th Dist. Butler No. CA2010-07-189, 2011-Ohio-2466, ¶ 10. However, even in
permanent custody cases, it is well established that the admission or exclusion of evidence
rests within the juvenile court's sound discretion. In re A.F., 12th Dist. Butler No. CA2011-
12-233, 2012-Ohio-2958, ¶ 32. This includes the admission or exclusion of evidence under
Evid.R. 616(A). Kelm v. Conkel, 10th Dist. Franklin No. 16AP-494, 2017-Ohio-8545, ¶ 7-8.
Because of this, "a reviewing court should not disturb evidentiary decisions in the absence
of an abuse of discretion that has created material prejudice." In re J.D., 12th Dist. Butler
No. CA2005-09-375, 2006-Ohio-3468, ¶ 7. An abuse of discretion connotes more than an
- 13 - Butler CA2022-01-003 CA2022-01-004
error of law or judgment. In re K.G., 12th Dist. Clinton No. CA2020-11-017, 2021-Ohio-
2154, ¶ 19. "An abuse of discretion implies that the trial court's attitude was unreasonable,
arbitrary, or unconscionable." In re P.B., 12th Dist. Warren No. CA2019-10-108, 2021-
Ohio-414, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Therefore,
when analyzing whether the juvenile court erred by refusing to allow Mother to "explore the
potential bias" of the caseworker assigned to R.B.'s and B.C.'s cases as part of her cross-
examination of that witness, "we must determine whether the juvenile court acted
unreasonably, arbitrarily, or unconscionably in deciding the evidentiary issues." In re A.S.,
183 Ohio App.3d 697, 2009-Ohio-3932, ¶ 53 (12th Dist.).
{¶ 24} Mother argues it was error for the juvenile court to prohibit her from asking the
caseworker assigned to R.B.'s and B.C.'s cases on cross-examination "about whether she
was aware if the children's therapist shared her opinion about reunification" of Mother with
her two children. Specifically, Mother argues it was error for the juvenile court to prohibit
her from asking the caseworker if R.B.'s and B.C.'s therapist had shared with her (the
caseworker) her (the therapist's) opinion about whether she (the therapist) believed Mother
could successfully reunify with R.B. and B.C. and whether she (the therapist) believed
Mother had made progress in her individual and family therapy. Mother also argues it was
error for the juvenile court to deny her the ability to ask the caseworker if her
recommendation that permanent custody of R.B. and B.C. be granted to BCDJFS was "in
compliance with all the service providers" involved in this case. To support this claim,
Mother argues the juvenile court should have permitted her to ask the caseworker these
questions because the way in which the caseworker ultimately came to her conclusion that
permanent custody of R.B. and B.C. should be granted to BCDJFS was "relevant and
essential to Mother's case."
- 14 - Butler CA2022-01-003 CA2022-01-004
{¶ 25} Although this court has spent significant effort attempting to understand
Mother's argument, we nevertheless find ourselves unable to fully understand Mother's
challenge given that it provides little, if any, explanation as to how asking the caseworker
these questions would have resulted in the caseworker providing responses indicating she
may have harbored prejudice or bias against Mother.4 However, even when setting aside
this court's confusion, the record indicates that the juvenile court prohibited Mother from
asking the caseworker these questions upon confirming with Mother that her therapist, as
well as R.B.'s and B.C.'s therapist, had all been subpoenaed to testify at the hearing on
BCDJFS' motions for permanent custody, thus rendering the caseworker's testimony about
what the therapists' may have shared with the caseworker regarding the therapists' own
opinions about the possibility of successful reunification of Mother with R.B. and B.C.
unnecessary. We find no abuse of the discretion in the juvenile court's decision. This is
because, given the record properly before this court, the juvenile court's decision prohibiting
Mother from asking the caseworker these questions was not unreasonable, arbitrary, or
unconscionable. This is particularly true here when considering Mother has also failed to
demonstrate how the juvenile court's decision prohibiting her from asking the caseworker
these questions subjected her to any resulting prejudice. Therefore, finding no merit to any
of Mother's arguments raised herein, Mother's second assignment of error lacks merit and
is overruled.
Assignment of Error No. 3:
{¶ 26} THE TRIAL COURT ERRED BY FINDING THAT PERMANENT CUSTODY
OF THE CHILDREN TO THE AGENCY WAS IN THE CHILDREN'S BEST INTERESTS,
4. We note that even the juvenile court had trouble understanding the purpose of Mother's questioning the caseworker in this manner. This is evidenced by the fact the juvenile court at one point asked Mother, "what are we talking about," a question the juvenile court later followed up by stating, "I'm still confused by the question" and "I wouldn't know how to answer that question." - 15 - Butler CA2022-01-003 CA2022-01-004
BECAUSE AWARDING PERMANENT CUSTODY TO THE AGENCY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 27} In her third assignment of error, Mother argues the juvenile court erred by
granting permanent custody of R.B. and B.C. to BCDJFS because its decision finding it was
in R.B.'s and B.C.'s best interest to grant permanent custody was against the manifest
weight of the evidence. We disagree.
Permanent Custody Standard of Review
{¶ 28} Before a mother's constitutionally protected liberty interest in the care and
custody of her children may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met. In
re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.
Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Because the state is required to prove
the statutory standards for permanent custody have been met by clear and convincing
evidence, "[a]n appellate court's review of a juvenile court's decision granting permanent
custody is generally limited to considering whether sufficient credible evidence exists to
support the juvenile court's determination." In re D.P., 12th Dist. Butler No. CA2020-07-
074, 2020-Ohio-6663, ¶ 13, citing In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and
CA2014-06-131, 2014-Ohio-5009, ¶ 6; and In re A.S., 12th Dist. Butler Nos. CA2019-05-
071, CA2019-05-072, and CA2019-05-073, 2019-Ohio-4127, ¶ 19. "This court will therefore
reverse a juvenile court's decision to grant permanent custody only if there is a sufficient
conflict in the evidence presented." In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and
CA2019-03-002, 2019-Ohio-3143, ¶ 17, citing In re K.A., 12th Dist. Butler No. CA2016-07-
140, 2016-Ohio-7911, ¶ 10. "However, even if the juvenile court's decision is supported by
sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is
- 16 - Butler CA2022-01-003 CA2022-01-004
against the manifest weight of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-
04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164,
2016-Ohio-72, ¶ 19.
{¶ 29} In determining whether a juvenile court's decision to grant a motion for
permanent custody is against the manifest weight of the evidence, an appellate court
"'weighs the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost
its way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.'" In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru
CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence,
there is a presumption in favor of the findings made by the finder of fact and evidence
susceptible to more than one construction will be construed to sustain the verdict and
judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15, citing
In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238,
2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21. "We are especially mindful of this in
permanent custody cases." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-
1000, ¶ 26, citing In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-4911, ¶
13 ("[t]he presumption in weighing the evidence is in favor of the finder of fact, which we
are especially mindful of in custody cases").
Applicable Permanent Custody Statute and Two-Part Permanent Custody Test
{¶ 30} "A public children services agency may seek permanent custody of a child in
an abuse, neglect, or dependency proceeding in one of two ways." In re S.H., 12th Dist.
Butler Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 17. "An agency may
- 17 - Butler CA2022-01-003 CA2022-01-004
either (1) obtain temporary custody of the child and then file a motion for permanent
custody, or (2) request permanent custody as part of its original abuse, neglect, or
dependency complaint." In re A.A., 12th Dist. Clermont No. CA2015-12-098, 2016-Ohio-
2992, ¶ 9, citing In re T.K.K., 12th Dist. Butler No. CA2012-01-008, 2012-Ohio-3203, ¶ 22.
Because BCDJFS filed its motions for permanent custody of R.B. and B.C. after the juvenile
court had already issued an initial disposition, it was R.C. 2151.414(B)(1) that applied to
BCDJFS' motions for permanent custody at issue in this case. See In re T.K.K. at ¶ 23,
fn.1 (noting that R.C. 2151.414[B][1] "generally applies when an agency files a motion for
permanent custody after an initial disposition"); see also In re W.R., 12th Dist. Fayette No.
CA2011-08-016, 2012-Ohio-382, ¶ 30 ("[i]n cases where an agency files a request for
permanent custody as part of an initial disposition the court is guided by the standards in
R.C. 2151.353[A][4]")
{¶ 31} Pursuant to R.C. 2151.414(B)(1), "the juvenile court may terminate parental
rights and award permanent custody of a child to a children services agency if the court
makes findings pursuant to a two-part test." In re M.H., 12th Dist. Clermont Nos. CA2021-
08-050 thru CA2021-08-052, 2022-Ohio-49, ¶ 30, citing In re G.F., 12th Dist. Butler No.
CA2013-12-248, 2014-Ohio-2580, ¶ 9. In accordance with that two-part test, the juvenile
court must first find the grant of permanent custody to the agency is in the best interest of
the child, utilizing, in part, the factors set forth in R.C. 2151.414(D). In re D.K.W., 12th Dist.
Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. The juvenile court must then find one
of the circumstances set forth in R.C. 2151.414(B)(1)(a) to (e) apply. In re R.F., 12th Dist.
Warren Nos. CA2021-06-052, CA2021-06-053, and CA2021-06-056, 2021-Ohio-4118, ¶
10, citing In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. Only
one of these findings must be met to satisfy the second prong of the two-part permanent
- 18 - Butler CA2022-01-003 CA2022-01-004
custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio- 3188, ¶ 12.
"This includes a circumstance, often referred to as the '12 of 22' provision, where the subject
child has been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period." In re A.D., 12th Dist. Clermont No. CA2021-11-060, 2022-
Ohio-736, ¶ 20, citing R.C. 2151.414(B)(1)(d). This also includes a circumstance where the
child has been abandoned. R.C. 2151.414(B)(1)(b).
{¶ 32} When considering the best interest of a child in a permanent custody case,
the juvenile court is required under R.C. 2151.414(D)(1) to consider certain enumerated
factors. In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-
Ohio-3341, ¶ 32. These factors include, but are not limited to: (1) the interaction and
interrelationship of the child with the child's 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, as expressed directly by the child or through the child's guardian ad
litem; (3) the custodial history of the child; (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 to the agency; and (5) whether any of the factors listed in R.C.
2151.414(E)(7) thru (11) apply in relation to the parents and child. In re J.C., 12th Dist.
Brown No. CA2017-11-015, 2018-Ohio-1687, ¶ 22. "The juvenile court may also consider
any other factors it deems relevant to the child's best interest." In re A.J., 12th Dist.
Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 24. No one factor is given greater weight
than the others. In re R.D., 12th Dist. Clermont Nos. CA2021-05-017 and CA2021-05-018,
2021-Ohio-3780, ¶ 25. Nor is any one factor dispositive. In re K.P., 12th Dist. Preble No.
CA2021-11-016, 2022-Ohio-1347, ¶ 19.
- 19 - Butler CA2022-01-003 CA2022-01-004
Mother's Argument and Analysis
{¶ 33} Mother does not challenge the juvenile court's finding R.B. and B.C. had been
in the temporary custody of BCDJFS for at least 12 months of a consecutive 22-month
period prior to BCDJFS' filing of its permanent custody motions. Mother instead argues the
juvenile court erred by finding it was in R.B.'s and B.C.'s best interest to grant permanent
custody to BCDJFS. To support this claim, Mother argues it was error for the juvenile court
to find it was in R.B.'s and B.C.'s best interest to grant permanent custody to BCDJFS
because she has successfully addressed the issues that resulted in R.B.'s and B.C.'s
removal from her custody and care, has exhibited stability in her life, is employed, lives in a
three-bedroom apartment, has transportation, and has remained clean and sober for a
period of several years. Mother also argues it was error for the juvenile court to find it was
in R.B.'s and B.C.'s best interest to grant DCDJFS permanent custody considering she has
exhibited "appropriate interactions and interrelationship" with both children during her
visitation time. Mother further argues it was error for the juvenile court to find permanent
custody was in R.B.'s and B.C.'s best interest given the children's' therapist testified that
she has "no concerns" with Mother's interactions with either R.B. or B.C. This is in addition
to Mother arguing it was error for the juvenile court to find it was in R.B.'s and B.C.'s best
interest to grant permanent custody to BCDJFS because R.B. "enjoys his sessions" with
Mother, because B.C. still refers to her as "Mom" and is "comfortable doing activities with
her," and because she has "taken steps to become a better parent by enrolling and
completing parenting classes."
{¶ 34} After a full and through review of the record, however, we find no error in the
juvenile court's decision finding it was in R.B.'s and B.C.'s best interest to grant permanent
custody to BCDJFS. This holds true even though the record indicates Mother had
- 20 - Butler CA2022-01-003 CA2022-01-004
completed some of her case plan services. In re A.R., 12th Dist. Butler No. CA2015-08-
143, 2016-Ohio-4919, ¶ 18 ("the case plan is simply a means to a goal, but not the goal
itself"); In re G.C., 12th Dist. Butler Nos. CA2016-12-237 thru CA2016-12-240, 2017-Ohio-
4226, ¶ 42 ("successful completion of one's case plan is not dispositive of the issue of
reunification"). The fact that Mother may have a strong bond with R.B. and B.C. does not
change this outcome. In re S.M., 12th Dist. Warren No. CA2018-07-076, 2018-Ohio-4654,
¶ 25 (strong bond between mother and child is but one factor to be considered when
determining the best interest of a child); In re I.B., 12th Dist. Butler No. CA2014-12-244,
2015-Ohio-1344, ¶ 20 (strong bond between mother and child is but one factor to consider
when determining the best interest of a child).
{¶ 35} Neither does the fact that Mother may be able to exhibit "appropriate
interactions and interrelationship" during her unsupervised visitation time with R.B. and
visitation time conducted via video with B.C. This is because, despite Mother's claims that
she has now turned her life around to the point where reunification with R.B. and B.C. is
possible, the record nevertheless provides sufficient credible evidence to support the
juvenile court's decision finding it was in R.B.'s and B.C.'s best interest to grant permanent
custody to BCDJFS. This includes evidence that both R.B. and B.C. have expressed their
desire to remain with their respective foster families rather than be returned to the custody
and care of Mother. This is certainly understandable given the damage that was done to
both R.B. and B.C. while in Mother's care. Therefore, because a child's best interests are
served by the child being placed in a permanent situation that fosters growth, stability, and
security, In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-
Ohio-3341, ¶ 60, and because the record indicates R.B.'s and B.C.'s placement with their
respective foster families has done wonders for their development both physically and
- 21 - Butler CA2022-01-003 CA2022-01-004
mentally, we find no error in the juvenile court's decision granting permanent custody of
R.B. and B.C. to BCDJFS. Accordingly, finding no merit to any of the arguments raised by
Mother herein, Mother's third assignment of error lacks merit and is overruled.
Conclusion
{¶ 36} For the reasons outlined above, and finding no merit to any of the arguments
Mother raised in support of her three assignments of error, the juvenile court's decision
granting permanent custody of R.B. and B.C. to BCDJFS is affirmed.
{¶ 37} Judgment affirmed.
M. POWELL, P.J., and PIPER, JJ., concur.
- 22 -