In re L.B.

[Cite as In re L.B., 2011-Ohio-4892.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
IN THE MATTER OF:
L. B., CASE NO. 10-11-06
ALLEGED DEPENDENT CHILD,
[KERMIT BRICKER,
APPELLANT/FATHER], OPINION
[BELINA BRICKER,
APPELLANT/MOTHER].
IN THE MATTER OF:
R. B., CASE NO. 10-11-07
ALLEGED DEPENDENT CHILD,
[KERMIT BRICKER,
APPELLANT/FATHER], OPINION
[BELINA BRICKER,
APPELLANT/MOTHER].
Appeals from Mercer County Common Pleas Court
Juvenile Division
Trial Court Nos. 32009023 and 32009024
Judgments Affirmed
Date of Decision: September 26, 2011
Case Nos. 10-11-06 and 10-11-07
APPEARANCES:
Donna M. Post for Appellants
Andrew J. Hinders for Appellee
Matthew L. Gilmore, Guardian Ad Litem
SHAW, J.
{¶1} Appellants, Kermit Bricker (“Kermit”) and Belina Bricker (“Belina”)
appeal the February 14, 2011 judgments of the Common Pleas Court, Juvenile
Division, of Mercer County, Ohio, granting permanent custody of their two
children, L.B. and R.B., to the Mercer County Department of Job and Family
Services (the “Agency”) and terminating their parental rights to these children.
{¶2} The facts relevant to these appeals are as follows. In January of 2009,
Kermit contacted the Agency because he and Belina, who was pregnant with
twins, L.B. and R.B., at the time, needed financial assistance for food and medical
bills. Through this contact, they began receiving assistance from the local Help
Me Grow program, which provided a service coordinator to help them learn to
take care of a baby. Around the same time, Kermit began counseling with Erin
Seitz at Foundations Behavioral Health Services (“Foundations”).
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{¶3} The twins were born in April of 2009. Help Me Grow continued to
provide services to Kermit and Belina, who lived in Mendon, Mercer County,
Ohio, at the time. In addition, the Agency became more involved with the family
and assigned an on-going caseworker, Marge Zwiebel, to work with the couple
and their children. During this time, the Agency also provided additional financial
assistance to the family by helping them pay their utility bills.
{¶4} In early July of 2009, Belina, who suffers from a number of maladies,
was hospitalized and Kermit was left to care for the children on his own. He was
unable to do so, which resulted in the Agency filing complaints in the Common
Pleas Court, Juvenile Division, alleging that the children were dependent. The
children were removed from their parents’ care and placed in the care of the
Agency. On September 10, 2009, the trial court held an adjudicatory hearing,
found that the children were dependent, and proceeded to disposition, whereby it
granted temporary custody of the children to the Agency. The trial court also
adopted the case plan proposed by the Agency.
{¶5} Both parents underwent a parenting evaluation by Dr. Frederick Ferri,
who filed his report with the court on April 30, 2010. On May 10, 2010, the
Agency filed motions for permanent custody of the children. The parents filed
motions to have a second parenting evaluation conducted by a different expert,
which were granted under the condition that the parents provide the name of this
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second expert by July 30, 2010. Although the court was willing to pay for a
second evaluation and the parents provided the name of a second expert, this
expert declined the request to conduct a parenting evaluation and the parents did
not provide the trial court with the name of any other expert.
{¶6} In June of 2010, Kermit and Belina moved to Delphos, Ohio, which is
partially located in Van Wert County, Ohio, because they were evicted from their
home in Mendon, Ohio. A few months later, they moved to a different apartment
in Delphos, which was located in the Allen County portion of Delphos.
{¶7} On August 17, 2010, visitation between the children and Kermit and
Belina was suspended due to the concerns of the children’s physician that one or
both of the parents may have had an infection that was compromising the
children’s immune systems. Based on the recommendations of the physician, the
court ordered that the parents be tested for “cryposporidum,” “c-def,” and an
infection that could suppress the immune system and ordered that visitation could
begin again when the children’s physician determined that they were medically
able to resume visitation with their parents. Although the parents testified that
they were tested for all three illnesses, as of the date of the permanent custody
hearing, the Agency had not received the results of the cryposporidum test, and the
parents had not visited with the children since July of 2010.
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{¶8} The permanent custody hearing was held on December 6, 2010. Also
on that date, the children’s guardian ad litem (“GAL”) filed his report,
recommending that the Agency be granted permanent custody of the children as
the same was in their best interests. The trial court took the matter under
advisement, and later granted the Agency’s motions for permanent custody and
terminated Kermit and Belina’s parental rights to L.B. and R.B. This appeal
followed, and Kermit and Belina now assert one assignment of error for our
review.
THE TRIAL COURT ABUSED ITS DISCRETION AND
ERRED WHEN IT TERMINATED APPELLANTS
PARENTAL RIGHTS AND AWARDED PERMANENT
CUSTODY TO THE DEPARTMENT OF JOB AND FAMILY
SERVICES.
{¶9} As an initial matter, we note that “[i]t is well recognized that the right
to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3rd Dist.
Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, citing In re Hayes (1997), 79 Ohio St.3d
46, 48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent “must
be afforded every procedural and substantive protection the law allows.” In re
Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
Thus, it is with these constructs in mind that we proceed to determine whether the
trial court erred in granting permanent custody of the children to the Agency.
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{¶10} Section 2151.414 of the Revised Code provides, inter alia, that a trial
court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this
section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to
the agency that filed the motion for permanent custody and that
any of the following apply:
(a) The child is not abandoned or orphaned, has not been in
the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, * * * 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.
***
R.C. 2151.414(B)(1)(a) (Emphasis added). The Supreme Court of Ohio has held
that “[c]lear and convincing evidence is that measure or degree of proof which
will produce in the mind of the trier of facts a firm belief or conviction as to the
allegations sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469,
477, 120 N.E.2d 118. Further, “[i]t is intermediate; being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
Id., citing Merrick v. Ditzler (1915), 91 Ohio St. 256, 110 N.E. 493. In addition,
when “the degree of proof required to sustain an issue must be clear and
convincing, a reviewing court will examine the record to determine whether the
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trier of facts had sufficient evidence before it to satisfy the requisite degree of
proof.” Cross, supra (citations omitted); see, also, In re Adoption of Holcomb
(1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613.
{¶11} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a),
the Revised Code states as follows:
(E) In determining at a hearing held pursuant to division (A) of
this section * * * whether a child cannot be placed with either
parent within a reasonable period of time or should not be
placed with the parents, the court shall consider all relevant
evidence. If the court determines, by clear and convincing
evidence, at a hearing held pursuant to division (A) of this
section * * * that one or more of the following exist as to each of
the child’s parents, the court shall enter a finding that the child
cannot be placed with either parent within a reasonable time or
should not be placed with either parent:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and diligent
efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the
parents have substantially remedied those conditions, the court
shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the
parent that is so severe that it makes the parent unable to
provide an adequate permanent home for the child at the
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present time and, as anticipated, within one year after the court
holds the hearing pursuant to division (A) of this section or for
the purposes of division (A)(4) of section 2151.353 [2151.35.3] of
the Revised Code
***
(16) Any other factor the court considers relevant.
R.C. 2151.414(E) (emphasis added).
{¶12} In the case sub judice, the trial court concluded that the Agency had
provided reasonable services and attempts to assist the parents to remedy the
problems that initially caused the children to be removed from the home and that
despite these efforts, Kermit and Belina have failed to successfully remedy the
conditions causing the children to be removed from the home and they are unable
to provide an adequate, safe, permanent home for the children now or in the
reasonable future. In reaching this conclusion, the trial court found that the mental
and physical issues of Kermit and Belina prevent them from providing a safe
environment to their children. Further, the court found that based on the evidence
before it, that it was in the children’s best interest to grant the Agency permanent
custody of them.
{¶13} The undisputed evidence before the trial court revealed that both
parents suffer from a number of physical and mental issues. Kermit suffers from
hepatitis C, emphysema, diabetes, cirrhosis of the liver, post-traumatic stress
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disorder, and major depressive disorder. Belina suffers from hepatitis C, psoriasis,
seizures, congestive heart failure, diabetes, fibromyalgia, rheumatoid arthritis,
asthma, emphysema, underactive thyroid, chronic obstructive pulmonary disease
(commonly known as “COPD”), schizoaffective disorder (bipolar type), post-
traumatic stress disorder, and personality disorder NOS (“not otherwise
specified”). Although Belina was prescribed a number of medications, the
evidence demonstrated that she often would fail to timely re-fill her prescriptions
and would stop taking her medication. Kermit also testified that he had been
prescribed medication for his depression but that he did not take it because he had
a prior history of being addicted to alcohol and drugs and did not want to relapse
into those addictions. Instead, his “cure for depression is to get out and work, do
something.” (Perm. Cust. Hrg., 12/6/10, p. 157.)
{¶14} During the hearing, Dr. Ferri, a licensed psychologist in the State of
Ohio for the past thirty-one years, testified that he administered a number of
psychological tests, including an intelligence assessment, to both Kermit and
Belina. He also reviewed hospital records, records from Foundations including
diagnostic assessments, a number of police reports involving Kermit and Belina,
case notes from Help Me Grow, and the Agency’s service plans for them. In
addition to the tests he administered, Dr. Ferri had five appointments, totaling
approximately seven hours, with Kermit and Belina individually, together, and
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together with their children. Dr. Ferri utilized all of this information in assessing
their parenting abilities and concluded as follows:
as individuals and as parents, they significantly lack parenting
abilities, both individually and collectively; and * * * that really
they have a very dependent relationship on each other. They
haven’t been able to take care of themselves to speak of, and I
felt it was extremely difficult for them to take care of a child and
let alone children.
(Perm. Cust. Hrg., 12/6/10, p. 16.) After giving this conclusion, the following
testimony was elicited:
Q: * * * What do you think their potential is to successfully
parent?
A: I think given the history that I learned through the records
and given the data that I obtained myself, the probability of
them learning how to become more effective parents I think is
minimal.
Q: And is that ability to learn even with services provided by
the individuals that you referred to in the review?
A: I think that’s a very critical factor because the record that I
had up until that time indicated that Children’s Services in
particular had, in my opinion at least, provided them with
extensive ancillary help or supportive help to help teach them
parenting. And despite all of the, all of the training, if you will,
all the efforts provided by Children’s Services, when I saw them,
my thought, my impression was that all of that training really
had not helped them at all. And so that would lead me also to
believe based on what I saw that when one projects into the
future, the likelihood of them developing parenting skills is very,
very low given that they’ve had, in my opinion they’ve had
ample opportunity to learn because of all the services that have
been provided to them, without success in my opinion.
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(id. at pp. 16-17.)
{¶15} On cross-examination, Dr. Ferri testified that he issued his report on
April 29, 2010, some seven months before the hearing date. He was then asked,
“Is it possible that through counseling or other remedy situations that their
shortcomings that you perceive in the Brickers could have been remedied since
that day?” (id. at p. 18.) Dr. Ferri responded, “I would be very surprised if the
shortcomings would be remedied in that period of time from May through now. I
would be very surprised.” (id.) He was also asked if his opinion that Kermit and
Belina do not have the abilities to be good parents was based primarily upon their
disabilities. Dr. Ferri responded,
My opinion is based upon several factors. Number one, a review
of their history that I obtained * * * and the very unstable
developmental history that both of these individuals experience,
number one. Number two, it’s based upon the rather – I guess I
would call it quasi-nomadic lifestyle. That haven’t had a –
because of that developmental history, they haven’t had a
significant time to establish themselves in their own relationship.
They’ve moved, et cetera. Thirdly, yes, there are some physical
documentation in terms of their particular illnesses. Okay? But
I’ve had a chance to review that. Fourth, * * * their intellectual
abilities and their mental health issues play a significant role in
the difficulty they have with parenting. Essentially, to try to
answer your question more specifically, essentially without a
history of emotional attachment, it becomes extremely difficult,
in my opinion, for both of these individuals to establish and
develop any type of emotional psychological attachment with
their children, with the two children that they have.
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(id. at pp. 20-21.)
{¶16} The evidence before the trial court further revealed that when the
children were first removed in July of 2009, Kermit and Belina were offered
visitation at the Agency four times per week. During this time, Zweibel provided
transportation on one occasion and offered a second time, but Kermit and Belina
did not visit on this occasion. In August of 2009, the Agency assigned a parent
mentor, Rose Obringer, to assist the family, which included transporting the
children to Kermit and Belina’s home for visitation once a week. Kermit and
Belina were also permitted visitation at the Agency three additional days per
week. However, in September of 2009, Kermit and Belina lost their vehicle, and
the Agency arranged for Obringer to increase the number of times she transported
the children to their parents’ home for visitation to twice a week (each Monday
and Thursday). In order to have Obringer bring the children for visitation,
Zwiebel required that Kermit and Belina contact either her or Obringer to let one
of them know that they actually wanted to exercise visitation on that date. This
arrangement continued until May of 2010, when the Agency filed for permanent
custody. After that time, visitation was offered at the Agency once a week until
August of 2010, when the trial court ordered visitation suspended for reasons
related to the children’s health.
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{¶17} In total, Kermit and Belina had approximately 180 visitation days
available to them between July of 2009 and August of 2010. A handful of the
visits were canceled by the Agency due to inclement weather or the children being
ill, but Kermit and Belina missed over 100 visits with the children due to no fault
of the Agency, the children, or the weather. Zwiebel did testify that on December
9, 2009, Belina informed her that she had swine flu and would not be able to
exercise visitation for the next three to four weeks. However, the following week,
Kermit and Belina attended an appointment that the children had, explaining to
Zwiebel that she was no longer contagious. Nevertheless, Kermit and Belina only
visited with their children once in the month of December, despite having nineteen
opportunities to do so, and exercised no visitation at all during the month of
January, despite have sixteen opportunities to do so. The reasons given by Kermit
and Belina for missing so many visits were that Belina was ill, that she had a
number of doctor’s appointment, that they had scheduling conflicts, or that they
had to pay bills on the first day of the month. However, they did not provide
documentation of the dates of these doctor’s appointments, attempt to arrange
visitation around any of these times, or otherwise detail why the number of missed
visitations was so great.
{¶18} Beginning in January of 2009, before the children were born, Kermit
and Belina also received assistance from Mary Fortman of Help Me Grow, who
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would go to their home to teach them parenting skills. These services continued
and were implemented into their case plan with the Agency once the children were
removed. In addition, Obringer worked with Kermit and Belina to teach them
parenting skills, often reinforcing what Fortman taught them on her previous visit.
Services from Help Me Grow continued until June of 2010, when Kermit and
Belina moved to another county.
{¶19} Two-hour sessions with Fortman and Obringer were scheduled to
occur every Monday and Thursday at a certain time when the children were first
born. However, Kermit and Belina were told to call Obringer before each visit to
let her know that they would be home. Obringer would then contact Fortman.1
The purpose of this arrangement was to ensure that Obringer and Fortman were
not driving to Mendon from Celina only to discover that Kermit and Belina were
not home. Once the children were older, Fortman’s sessions with the parents were
reduced to once every three weeks, but the Agency continued Obringer’s services
every Monday and Thursday. Fortman testified that from July of 2009, when the
children were removed, until June of 2010, when Kermit and Belina moved out of
Mercer County, she had twenty-four scheduled sessions but Kermit and Belina
missed fourteen of these. According to Fortman, Belina informed them that she
1
Fortman also testified that Kermit and Belina were permitted to contact her as well and then she, in turn,
would contact Obringer.
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was ill for four of these missed sessions but that the other ten missed sessions
occurred without Kermit or Belina contacting Fortman or Obringer at all.
{¶20} Fortman testified that she attempted to teach them how to bathe the
children, but they were never able to properly bathe the children on their own.
Rather, she had to stand next to them and tell them step-by-step what to do each
time Kermit and Belina tried to bathe the children. When Fortman attempted to
teach them how to properly feed the children, they were never prepared to start.
For instance, she would have to instruct them to wash the high chair because their
cats had been on it. She also had to repeatedly remind them to talk to the children
as they were feeding them because that type of interaction is an important part of
attachment. Fortman also had them place a blanket on the floor to work with the
children because of the uncleanliness of the floor and had to repeatedly remind
them to clear the tables, including removing their diabetes medications, once the
children were able to reach these items. Further, Fortman testified that Kermit
would always be the one to interact with R.B. and that Belina would eventually
interact with L.B., but that the parents rarely interacted with both children.
Fortman also testified that she did not believe that any of the education she
provided was completed because they could not give the children a bath by
themselves, they had to be monitored at all times when feeding the children
because they were inattentive which was both a safety and an attachment issue,
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and they were not able to interact with both children at the same time, often
ignoring one or the other. When asked if she observed whether there was any
attachment between the parents and the children, she answered that she did not
observe any attachment between them.
{¶21} Obringer, who was scheduled to bring the children twice a week for
the vast majority of the time that the children were in the Agency’s custody, also
testified. She testified very similarly to Fortman, including that she had to address
with Kermit and Belina that they needed to clean their home and needed to place
their medications somewhere safe to protect the children. She testified that she
stopped bringing the children to Kermit and Belina’s home when the Agency filed
for permanent custody in May of 2010, and that the home was more organized
than when she first started coming to their home but that they had no electricity.
However, after all of her involvement with Kermit and Belina, Obringer, who was
not allowed to leave the children unsupervised with their parents, testified that she
would not have felt comfortable, even if she were permitted to do so, leaving the
children alone with Kermit and Belina for more than five minutes at the most.
{¶22} As for their living situation, Zwiebel testified that she regularly
visited the home and sometimes it was clean and sometimes it was not, including
when Belina’s skin condition caused her skin to flake and these flakes would be
everywhere in the home. In April of 2010, the utilities in their Mendon home
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were shut off. Kermit testified that this led to their eventual eviction in June of
2010, and they moved to their first apartment in Delphos. Zwiebel testified that
their first apartment in Delphos was clean on one occasion when she visited, but
the next time she visited, skin flakes were all over the floor as well as what
appeared to be diarrhea from one of their three cats which was swirled all over the
floor. However, the second apartment they had in Delphos was clean when
Zwiebel visited. Belina testified that they moved to this second apartment because
they had an infestation of bed bugs in their first apartment but also acknowledged
that they were behind on their rent by $700.00.
{¶23} Neither Kermit nor Belina were employed throughout their
involvement with the Agency. Instead, they each received $505.05 in social
security for a total of $1010.10. Kermit testified that he began receiving social
security when he was released from prison after serving fourteen years and that the
government provided this money to assist him “to get back on [his] feet.” (Perm.
Cust. Hrg., 12/6/10, p. 156.) Kermit was released from prison in November of
2005. Thus, by the time of the permanent custody hearing, he had been receiving
social security for the last five years. The couple also received food stamps
($286.00 at the time of the permanent custody hearing), and for approximately six
to seven months after the children were removed from their home, Kermit and
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Belina received an additional $355.00 from the State of Ohio to assist them in
maintaining their home so that they could be reunited with their children.
{¶24} Zwiebel testified that the Agency assisted Kermit and Belina in
paying their utility bills while the children were still in their home but did not
provide additional financial assistance for these types of expenses once the
children were removed. In January of 2010, their home in Mendon was without
heat for a time because they ran out of fuel oil, not having realized that their home,
which was older, required quite a bit of fuel oil to heat it. In April of 2010, their
utilities were shut off at their Mendon home, resulting in their eventual eviction in
June. Belina testified that they were going to pay the past due utility bills but they
gave this money to a friend to hold for them and the friend stole this money, which
amounted to approximately $165.00.
{¶25} When asked why they had problems paying their bills, both admitted
that Belina was in charge of making sure they were paid (Kermit testified that he
was trying to teach her responsibility) but that at times she spent their money
irresponsibly. Belina also testified that it was not their fault that they were past
due with their rent at the first apartment in Delphos because they had “major bills
* * * to catch up on.” (id. at p. 184.) When asked what those were, she said she
had to pay their cable bill of $150.00-$200.00 because they like to watch sports, a
$50.00 pharmacy bill, and a $250.00 phone bill.
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{¶26} The couple also received counseling at Foundations with
transportation to this counseling being provided by Foundations. After the
children were removed from their home, this counseling was continued and made
a part of the case plan. Their counselor, Erin Seitz, testified that the major issue for
which she counseled Kermit was financial stability and Belina’s were coping with
stress and parenting. Seitz testified that when she visited the home it was often
dirty and smelled of animal urine. She also testified that they had sufficient
income to keep their utilities if they had been careful about spending their money.
Seitz testified that with her help, Kermit was able to establish a budget, but he was
unable to maintain it. She also emphasized to Belina the importance of bonding
with the children, making the home environment appropriate for them, and taking
her medications. Seitz also referred the couple to a number of other resources in
the community that provide assistance to the needy.
{¶27} Out of fifty-seven appointments she scheduled for Kermit, he
canceled or failed to show for twelve of them. Out of the fifty-two appointments
she scheduled with Belina, Belina canceled or failed to show for ten of them.
Foundations also scheduled therapy sessions for Kermit and Belina. Belina
attended fifteen of the twenty-nine that were scheduled, and Kermit attended
twenty-six of the thirty-eight scheduled for him.
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{¶28} Both Belina and Kermit testified that they were not bonded to the
children. Kermit explained that he did not bond with them as much because he
was trying to allow Belina to bond with them since she was their mother. Belina,
who rarely interacted with the children or held them unless directed to do so,
testified that it was difficult for her to bond with the children because she was
afraid of hurting them emotionally or getting emotionally hurt herself. However,
they both testified that they loved their children and wanted them back in their
home.
{¶29} In light of all this evidence and in considering R.C. 2151.414(B)(1)
and (D)(1), we do not find that the trial court erred in concluding that the case plan
was reasonable and that the Agency provided reasonable services and attempts to
assist the parents to remedy the problems that caused the children to be removed
from the home. Further, the trial court had ample evidence to conclude that
despite these efforts, Kermit and Belina failed to successfully remedy the
conditions causing the children to be removed from the home and they were
unable to provide an adequate, safe, permanent home for the children now or in
the reasonable future. Moreover, considering this evidence and the GAL’s report
and recommendation, the trial court also had clear and convincing evidence to
conclude that permanent custody to the Agency was in the children’s best interest.
Thus, we find that the trial court did not err in granting the Agency’s motions for
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permanent custody. Accordingly, the assignment of error is overruled, and the
judgments of the Common Pleas Court, Juvenile Division, of Mercer County,
Ohio, are affirmed.
Judgments Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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