In re E.B.

[Cite as In re E.B., 2017-Ohio-2672.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
E.B., : No. 16AP-352
(C.P.C. No. 16JU-817)
(K.B., :
(REGULAR CALENDAR)
Appellant). :
In the Matter of: :
E.B., : No. 16AP-395
(C.P.C. No. 16JU-817)
(G.B., :
(REGULAR CALENDAR)
Appellant). :
In the Matter of: :
A.B., : No. 16AP-443
(C.P.C. No. 15JU-357)
(G.B., :
(REGULAR CALENDAR)
Appellant). :
In the Matter of: :
J.B., : No. 16AP-448
(C.P.C. No. 15JU-355)
(G.B., :
(REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on May 4, 2017
On brief: The Law Offices of Bradley Jeckering, LLC, and
Joel Sprout, for appellant K.B.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 2
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant G.B. Argued: George M.
Schumann.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services. Argued: Robert J. McClaren.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Appellants, K.B. and G.B., appeal from judgments of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, awarding
permanent custody of their two sons, A.B. and J.B., and their daughter, E.B., to appellee,
Franklin County Children Services ("FCCS"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant K.B. and her husband, G.B., are the biological parents of A.B.,
born March 17, 2007, J.B., born October 18, 2008, and E.B., born August 30, 2015. At the
time of the custody hearing on April 13, 2016, G.B. was in the custody of the Department
of Rehabilitation and Corrections, Lancaster Correctional Complex ("LCC"), serving a
prison sentence for convictions of forgery and tampering with evidence. K.B.'s parents
have custody of the couple's eldest child, L.B. and, according to K.B., her two other
biological children, B.D. and J.J., have been living with their maternal grandparents since
they were babies. G.B. testified that he has a 23-year old daughter who lives in California.
{¶ 3} Both G.B. and K.B. appeared and gave testimony at the permanent custody
trial held on April 13-14, 2016. The juvenile court also heard testimony from the
children's court-appointed Guardian ad Litem Keith Brewster ("GAL"), caseworker David
Phinney, and Lisa Blackford, associate director of Permanent Family Solutions Network
("PFSN"), the managed care agency working with FCCS on this case. The evidence
presented at the 2016 custody trial revealed that FCCS has been involved with the family
since 2010.
{¶ 4} On October 2, 2010, FCCS temporarily removed A.B. and J.B. from their
parents' custody after Columbus Division of Police arrested G.B. for domestic violence.
According to G.B., just prior to the October 2, 2010 incident, he had moved the two boys
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 3
out of their home and into another residence because he "didn't want [K.B.] bringing her
drugs over there" and because K.B.'s "drug people * * * shot up the house I owned on
Welch Avenue." (Apr. 13, 2016 Tr. at 55.) According to G.B., his wife K.B. was using
heroin at the time. When K.B. attempted to force her way into the home where G.B. had
taken the boys, G.B. used physical force to push her out the door. K.B. called the police
alleging that G.B. had committed domestic violence. When police arrived at the home,
G.B. refused to answer the door. When a Columbus Division of Police S.W.A.T. team
subsequently arrived at the scene, G.B. surrendered to police and was taken to jail.
{¶ 5} Due to G.B.'s incarceration and K.B.'s drug addiction, FCCS obtained
temporary custody of A.B. and J.B. on October 8, 2010. G.B. subsequently pleaded guilty
to domestic violence and remained behind bars from October 2, 2010 through
December 14, 2011. FCCS filed a complaint alleging that A.B. and J.B. were dependent
children, and on December 6, 2010, the juvenile court adjudged both boys as dependent.
FCCS issued a case plan setting forth the conditions K.B. and G.B. had to meet in order to
be reunified with their two boys. The issues addressed in the case plan with respect to
K.B. included her alcohol and drug use, her victimization by her husband's domestic
violence, her mental health condition of depression, and housing and financial stability.
The issues of concern regarding G.B. included his alcohol and drug use, anger
management/domestic violence, and occasional jail sentences.
{¶ 6} On September 24, 2010, FCCS filed its first motion for permanent custody
of A.B. and J.B. alleging that neither K.B. nor G.B. had made adequate progress on their
case plan and that permanent custody was in the children's best interest. Following a
permanent custody trial, the juvenile court issued a judgment entry denying FCCS'
motion for permanent custody. The September 10, 2014 judgment entry provides, in
relevant part, as follows:
[T]he Court finds that there is not clear and convincing
evidence, pursuant to O.R.C. 2151.414(D)(E) that permanent
custody is in the best interest of the children. The Court finds
that the children can be placed with the father within a
reasonable time or should be placed with their father in the
forseeable future. The children's continued residence in or
return to the father's home would not be contrary to the
children's best interests and welfare.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 4
(Sept. 10, 2014 Permanent Custody Jgmt. Entry at 12.)
{¶ 7} The juvenile court placed certain preconditions on G.B. regaining legal
custody, including "four consecutive weekly urine screens showing negative for any
alcohol or other drugs" and "no new domestic violence or other criminal offense charges
for which there is a conviction or guilty plea." (Sept. 10, 2014 Jgmt. Entry at 13.) The
juvenile court also ordered K.B. to meet certain conditions before she could resume
visitation with the children, including negative urine screens, completion of substance
abuse counseling, and completion of a program for victims of domestic violence.
{¶ 8} The record shows that FCCS returned physical custody of the two boys to
G.B. in mid-September 2014 and that G.B. eventually met the drug and alcohol conditions
required by the September 10, 2014 judgment entry. Accordingly, the juvenile court
returned legal custody of the two boys to G.B. on November 4, 2014. The evidence shows
that even though K.B. had not satisfied the conditions for resuming visitation, she moved
back into the residence with G.B. and the two boys.
{¶ 9} K.B. testified that on December 31, 2014, G.B. drank one-half of a bottle of
Black Velvet whiskey and then ordered her to go to Kroger and get him another bottle.
According to K.B., while she and the children were having fun wrestling with G.B. in the
living room, "all of a sudden [G.B.] just got serious with me." (Apr. 14, 2016 Tr. at 9.)
K.B. stated that G.B. "[p]ut his hands around my neck." (Apr. 14, 2016 Tr. at 10.) K.B.
recalled that A.B. "got hit during the * * * incident" and that he called 911. (Apr. 14, 2016
Tr. at 11.) As a result of this incident, G.B. faced charges of domestic violence both as to
K.B. and A.B. Because G.B. was unable to raise bond, he remained in jail.
{¶ 10} On January 13, 2015, FCCS filed a complaint alleging that A.B. and J.B.
were abused, neglected, and dependent children. The matter subsequently proceeded
uncontested as to the allegation of dependency. On January 15, 2015, G.B. pleaded guilty
to domestic violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree,
and received a sentence of 180 days in jail, with 16 days of jail-time credit and the
remaining 164 days suspended. The sentencing court also imposed a five-year
probationary period, including the condition that G.B. submit to alcohol/drug testing as
requested by his probation officer, not possess or consume alcoholic beverages or
substances of abuse, attend and successfully complete domestic violence counseling, and
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 5
"stay away" and have "no contact" with either K.B. or A.B. during the five-year
probationary period. (Jan. 16, 2015 Conditions of Probation.)
{¶ 11} On June 24, 2015, FCCS filed its second motion for permanent custody of
both A.B. and J.B. pursuant to R.C. 2151.414(B) and (D). Sometime in August 2015, G.B.
was arrested in Licking County. On August 12, 2015, a Licking County Grand Jury
indicted G.B. on one count of forgery, a felony of the fifth degree, and one count of
tampering with evidence, a felony of the third degree.
{¶ 12} While G.B. was in jail on the Licking County charges, K.B. gave birth to E.B.
on August 30, 2015. There is no dispute that E.B. was born with some very serious
medical conditions, including paralyzed vocal chords and Stridor syndrome, which causes
a constriction of E.B.'s airway. As a result, E.B. breathes through a tracheotomy and a
breathing tube, which must be cleared every three or four minutes. E.B. requires constant
care including nine hours of overnight nursing care per day to keep her airway clear. E.B.
receives nutrition exclusively through a feeding tube. In addition, E.B. has a congestive
heart defect and a skull that has prematurely closed, restricting the space for her brain to
grow.
{¶ 13} On January 22, 2016, when E.B. was just five months old, FCCS filed a
motion for permanent custody pursuant to R.C. 2151.353. The juvenile court granted
temporary custody to FCCS on January 25, 2016 and scheduled a trial on the motion for
permanent custody to coincide with the trial of the motion for permanent custody of A.B.
and J.B. On February 18, 2016, G.B. pleaded guilty to the Licking County charges, and the
court imposed a prison sentence of nine months for forgery and two years for tampering
with evidence. With credit for time served, G.B.'s release date is August 20, 2017.
{¶ 14} The two-day trial of the custody issues commenced on April 13, 2016. The
juvenile court heard testimony from K.B., G.B., the GAL, Phinney, and Blackford. The
GAL recommended that it was in the best interest of all three minor children for the
juvenile court to grant permanent custody to FCCS. The GAL testified that his opinion
regarding permanent custody of A.B. and J.B. had not changed since the first custody trial
in 2014 when he also recommended an award of permanent custody to FCCS. Blackford
testified she made the decision to move forward with a motion for permanent custody of
all three children, and she opined that granting permanent custody to FCCS was in the
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 6
children's best interest. According to Blackford, she previously made the same
recommendation at the 2014 permanent custody hearing for A.B. and J.B. Phinney, who
had been working with the family on the case plan since February 2015, testified that
granting permanent custody to FCCS was in the best interest of all three children.
{¶ 15} The juvenile court issued four judgment entries as a result of the permanent
custody trial. On April 21, 2016, the juvenile court issued a judgment entry granting
permanent custody of E.B. to FCCS and terminating parental rights of K.B. On May 26,
2016, the juvenile court issued a judgment entry granting permanent custody of E.B. to
FCCS and terminating parental rights of G.B. On May 26, 2016, the juvenile court issued
a judgment entry granting permanent custody of A.B. to FCCS and terminating parental
rights of G.B. and K.B. The juvenile court issued a separate judgment entry on May 26,
2016 granting permanent custody of J.B. to FCCS and terminating parental rights of G.B.
and K.B.
{¶ 16} G.B. timely appealed to this court from the juvenile court's judgment entry
of April 21, 2016, terminating his parental rights as to E.B., and the May, 26, 2016
judgment entry, terminating his parental rights as to A.B. and J.B. K.B. timely appealed
to this court solely from the juvenile court's April 21, 2016 judgment entry terminating her
parental rights as to E.B.
II. ASSIGNMENTS OF ERROR
{¶ 17} Appellant G.B. asserts the following assignment of error:
The juvenile court's judgment granting permanent court
commitment of the minor children to Franklin County
Children Services was against the manifest weight of the
evidence.
{¶ 18} Appellant K.B. asserts the following two assignments of error:
[1.] TRIAL COURT ERRED BY FAILING TO APPOINT AN
INDEPENDENT PSYCHIATRIC EXPERT TO AID IN THE
PRESENTATION OF THE MOTHER'S CASE WHEN THE
STATE PRESENTED EVIDENCE OF THE MOTHER'S
MENTAL HEALTH.
[2.] TRIAL COURT ERRED BY FINDING CLEAR AND
CONVINCING EVIDENCE THAT IT IS IN THE BEST
INTEREST OF THE CHILD TO BE PERMANENTLY
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 7
COMMITTED TO FRANKLIN COUNTY CHILDREN
SERVICES AND THAT THE CHILD CANNOT OR SHOULD
NOT BE RETURNED TO THE PARENTS IN A
REASONABLE TIME.
III. STANDARD OF REVIEW
{¶ 19} "A trial court's determination in a PCC case will not be reversed on appeal
unless it is against the manifest weight of the evidence." In re K.M., 10th Dist. No. 15AP-
64, 2015-Ohio-4682, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-
3312, ¶ 28. In reviewing a judgment granting permanent custody to FCCS under the
manifest weight standard, " 'an appellate court "must make every reasonable presumption
in favor of the judgment and the trial court's findings of facts." ' " K.M. at ¶ 13, quoting In
re J.T., 10th Dist. No. 11AP-1056, 2012-Ohio-2818, ¶ 8, quoting In re P.G., 10th Dist. No.
11AP-574, 2012-Ohio-469, ¶ 37. " ' "[I]f the evidence is susceptible of more than one
construction, we must give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the [juvenile] court's verdict and judgment." ' "
K.M. at ¶ 13, quoting In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59,
quoting Karches v. Cincinnati, 38 Ohio St.3d 12, 19 (1988). " 'An appellate court will not
overturn a permanent custody order when it is supported by competent, credible
evidence.' " In re M.W., 10th Dist. No. 11AP-524, 2011-Ohio-6392, ¶ 20, quoting In re
Siders, 10th Dist. No. 96APF04-413 (Oct. 29, 1996), citing In re Brofford, 83 Ohio App.3d
869, 876-77 (10th Dist.1992).
IV. LEGAL ANALYSIS
{¶ 19} Parents have a basic and fundamental interest of the care, custody, and
management of their children. Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme
Court of Ohio recognizes that it is the constitutionally protected right of a parent to raise
his or her child. In re Murray, 52 Ohio St.3d 155, 157 (1990); In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, ¶ 28. Parental rights, however, are not absolute, and a parent's
natural rights are always subject to the ultimate welfare of the child. K.M. at ¶ 15, citing In
re Cunningham, 59 Ohio St.2d 100, 106 (1979).
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 8
A. G.B.'s Sole Assignment of Error
{¶ 20} In G.B.'s sole assignment of error, G.B. contends that the juvenile court's
permanent custody determination is against the manifest weight of the evidence. We
disagree.
1. Custody of A.B. and J.B.
{¶ 21} FCCS moved for permanent custody of A.B. and J.B. on several statutory
grounds, including R.C. 2151.414(B)(1)(a) and (d). R.C. 2151.414(B)(1) reads, in relevant
part, as follows:
Except as provided in division (B)(2) of this section, the 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, or 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 if,
as described in division (D)(1) of section 2151.413 of the
Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state, and the child
cannot be placed with either of the child's parents within a
reasonable time or should not be placed with the child's
parents.
(b) The child is abandoned.
***
(d) The child has 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, or the child has 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, as described in
division (D)(1) of section 2151.413 of the Revised Code, the
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 9
child was previously in the temporary custody of an
equivalent agency in another state.
(Emphasis added.)
{¶ 22} R.C. 2151.414 governs the procedure for granting permanent custody of a
child to a public agency such as FCCS. K.M. at ¶ 13. A decision to award permanent
custody requires the juvenile court to take a two-step approach. In re K.L., 10th Dist. No.
13AP-218, 2013-Ohio-3499, ¶ 18. Under R.C. 2151.414(B)(1), a juvenile court may grant
permanent custody if after a custody trial the court determines, by clear and convincing
evidence, that "(1) any of the circumstances in R.C. 2151.414(B)(1)(a) through (d) exist,
and (2) such relief is in the best interest of the child. Clear and convincing evidence
means the measure of proof that produces ' "a firm belief or conviction as to the facts
sought to be established." ' " K.M. at ¶ 14, quoting In re K.H., 119 Ohio St.3d 538, 2008-
Ohio-4825, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
{¶ 23} In this case, the juvenile court made the following alternative findings under
R.C. 2151.414(B)(1): (1) the circumstances under subsection (a) existed because the boys
were not abandoned and had not been in the temporary custody of FCCS for 12 or more
months of a consecutive 22-month period; (2) the circumstances under subsection (b)
existed because the boys had been abandoned; and (3) both boys had been in the
temporary custody of one or more public children services agencies or private child
placing agencies for 12 or more months of a consecutive 22-month period.
{¶ 24} With regard to circumstances in subsection (d), FCCS filed their second
motion for permanent custody on June 24, 2015 and, at that time, the two boys had been
in FCCS' custody since January 20, 2015. The boys were previously in FCCS' custody
from September 24, 2010 through November 1, 2014. Thus, the undisputed evidence
presented at the custody trial establishes that, pursuant to R.C. 2151.414(B)(1)(d), A.B.
and J.B. had been in the temporary custody of FCCS for 12 or more months of a
consecutive 22-month period. Because the evidence supports the juvenile court's finding
that the circumstances under R.C. 2151.414(B)(1)(d) exist, permanent custody shall be
granted to FCCS as such relief is in the children's best interest. R.C. 2151.414(B)(1); K.M.
at ¶ 14; K.H. at ¶ 42.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 10
{¶ 25} G.B. contends, however, that we must reverse the juvenile court's custody
determination because of obvious inconsistencies in the juvenile court's alternative
findings under R.C. 2151.414(B)(1). G.B. first contends that the juvenile court's finding
that the circumstances set forth in R.C. 2151.414(B)(1)(d) existed is inconsistent with its
alternative finding that the circumstances set forth in R.C. 2151.414(B)(1)(a) existed. G.B.
maintains that it is not logical for the juvenile court to find that A.B. and J.B. have been in
the custody of FCCS for 12 or more months of a consecutive 22-month period for
purposes of subsection (B)(1)(d) and also find that the boys have not been in the custody
of FCCS for 12 or more months of a consecutive 22-month period for purposes of
subsection (B)(1)(a). G.B. also contends that the juvenile court's finding that the grounds
set forth in R.C. 2151.414(B)(1)(a) existed is inconsistent with its finding that the grounds
set forth in R.C. 2151.414(B)(1)(b) existed. G.B. insists that the juvenile court cannot
logically find that A.B. and J.B. are not abandoned for purposes of subsection (B)(1)(a)
and also find that the children are abandoned for purposes of subsection (B)(1)(b).
{¶ 26} FCCS acknowledges that the trial court's alternative findings are
inconsistent but argues that the inconsistencies do not require reversal of the juvenile
court's judgment because the evidence supporting the juvenile court's finding under R.C.
2151.414(B)(1)(d) is uncontroverted. We agree.
{¶ 27} FCCS filed the motion for permanent custody alleging, alternatively, that
the grounds set forth in R.C. 2151.414(B)(1)(a) and (d) existed. FCCS did not move the
court for permanent custody on the grounds of abandonment under R.C.
2151.414(B)(1)(b). In order for FCCS to establish grounds for permanent custody under
R.C. 2151.414(B)(1), FCCS was required to prove, by clear and convincing evidence, that
any of the circumstances under subsections (a) through (d) existed. Because it is
undisputed that on the date FCCS filed its second motion for permanent custody, A.B. and
J.B. had been in the temporary custody of FCCS for 12 or more months of a consecutive
22-month period, G.B. cannot establish any prejudice arising from the juvenile court's
alternative findings regarding abandonment for purposes of R.C. 2151.414(B)(1)(a) and
(b). In re C.C., 12th Dist. No. CA2011-11-113, 2012-Ohio-1291, ¶ 22-23 (trial court did not
err in making a finding that children could not be placed with the parents within a
reasonable time under R.C. 2151.414(B)(1)(a) after finding that the children were
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 11
abandoned under R.C. 2151.414(B)(1)(b), as nothing prevented a trial court from making
alternative findings). See also In re Franklin, 3d Dist. No. 9-06-12, 2006-Ohio-4841, ¶ 16
(because the juvenile court properly found the children abandoned under R.C.
2151.414(B)(1)(b) and because the custody award was in the children's best interest, the
juvenile court's erroneous finding that the children were also within the agency's custody
for the requisite period of time under R.C. 2151.414(B)(1)(d) was harmless error). In
other words, the subjective finding of abandonment for purposes of subsections (a) and
(b) is unnecessary where the juvenile court properly finds that grounds for custody exist
under the objective standard set forth in subsection (d). Id.{¶ 28} Under the statutory child custody scheme, if the juvenile court finds, by
clear and convincing evidence, that any of the grounds listed in R.C. 2151.414(B)(1) exist,
the juvenile court must award custody to the moving party if it also finds, by clear and
convincing evidence, that it is in the best interest of the child to grant permanent custody.
R.C. 2151.414(B). In determining the best interest of A.B. and J.B., the juvenile court was
guided by R.C. 2151.414(D)(1), which provides, in relevant part, as follows:
In determining the best interest of a child at a hearing held
pursuant to division (A) of this section * * *, the court shall
consider all relevant factors, including, but not limited to, the
following:
(a) 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;
(b) The wishes of the child, as expressed directly by the child
or through the child's guardian ad litem, with due regard for
the maturity of the child;
(c) The custodial history of the child, including whether the
child has 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 * * *;
(d) 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;
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 12
(e) Whether any of the factors in divisions (E)(7) to (11) of
this section apply in relation to the parents and child.
{¶ 29} In concluding the granting of permanent custody of A.B. and J.B. to FCCS
was in the best interest of the children, the juvenile court considered and weighed the
factors set forth in R.C. 2151.414(D)(1)(a) through (e). For purposes of subsection (a),
there is no dispute that A.B. and J.B. have a strong bond with G.B. G.B. testified that he
loves his boys and that they have a strong bond. The GAL testified the boys have also
formed a bond with their current foster parents. Blackford maintained that A.B.'s and
J.B.'s current foster parents have expressed a willingness to adopt both boys. Phinney
testified that he visits A.B. and J.B. every two weeks at their foster home and that the boys
have bonded with their foster parents. The witnesses were in agreement that A.B. and
J.B. have a bond with each other.
{¶ 30} With regard to the wishes of A.B. and J.B., the GAL testified that A.B.
wishes to reunite with G.B. but that J.B. has expressed a desire to live with G.B. and/or
K.B. According to the GAL, J.B. also expressed a desire to live with one of his former
foster parents, who he refers to as his "grandma." (Apr. 14, 2016 Tr. at 64.) Phinney
testified that A.B. wants to live with G.B. but that J.B. has indicated to him he is afraid of
G.B. G.B. testified that he believes A.B. will "run away" if the juvenile court grants custody
to FCCS. (Apr. 13, 2016 Tr. at 107.)
{¶ 31} The boys' custodial history reveals G.B. went to jail following the October 2,
2010 domestic violence offense and that K.B. did not retain custody of the boys thereafter
due to her drug addiction. FCCS obtained an order of temporary custody on October 8,
2010. The two boys were in FCCS' custody for the next four years. G.B. regained legal
custody of A.B. and J.B. in November 2014. On December 31, 2014, Columbus Division of
Police arrested G.B. for domestic violence. A.B. and J.B. stayed in the home with K.B. for
a short time after G.B. went to jail, but FCCS removed the children on January 20, 2015
when it was discovered that K.B. was not submitting to drug and alcohol screens and not
taking A.B. to his counseling appointments. On the date of the custody trial, A.B. and J.B.
had been in the legal custody of FCCS for more than five and one-half of the last six years.
Thus, the custodial history of the two boys overwhelmingly favors permanent custody to
FCCS.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 13
{¶ 32} With regard to R.C. 2151.414(D)(1)(d), "a legally secure permanent
placement" is more than a house with four walls. Rather, it generally encompasses a
stable environment where a child will live in safety with one or more dependable adults
who will provide for the child's needs. In re M.B., 4th Dist. No. 15CA19, 2016-Ohio-793,
¶ 56, citing K.M. at ¶ 28. The evidence in this case demonstrates that A.B. and J.B. need a
legally secure permanent placement and that such placement cannot be achieved without
a grant of permanent custody to the agency.
{¶ 33} On the date of the permanent custody trial, A.B. had recently turned nine
years old and J.B. was just seven and one-half years of age. Given G.B.'s current
incarceration, legally secure permanent placement with G.B. was not feasible. K.B. has
not appealed from the juvenile court judgment terminating her parental rights to A.B. and
J.B. Consequently, placement of the two boys with K.B. was not, and never will be, a
viable option. A.B. and J.B. have been in FCCS' custody for more than five and one-half
years at the time of the custody trial, with more than one set of foster parents during that
time period. Their current foster parents have indicated a willingness to adopt the boys.
{¶ 34} The GAL stated that he has witnessed A.B. acting in a violent manner
towards J.B. when A.B. believes no adults are watching. The GAL stated that A.B.
witnessed the December 31, 2016 incident where his father choked his mother and that
A.B. was struck by G.B. when he attempted to intervene. The GAL did not believe G.B.
intended to harm A.B. The GAL testified that A.B. dominates J.B. and that J.B. is
submissive to his older brother. In our view, the weight of the evidence supports the trial
court's determination that A.B. and J.B. have an immediate need for a legally secure
permanent placement and that such placement cannot be achieved without a grant of
permanent custody to FCCS.
{¶ 35} In addition to the factors listed in R.C. 2151.414(D)(1)(a) through (e), the
juvenile court is instructed to consider "all relevant factors" affecting the best interest of
the child. In this regard, the evidence presented at the custody trial reveals that G.B.'s
history of domestic violence and violence against women weighs heavily in favor of the
juvenile court's conclusion that permanent legal custody to FCCS is in the best interest of
A.B. and J.B.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 14
{¶ 36} The testimony established several incidents of G.B. being violent. In her
testimony, K.B. stated that G.B. had gotten physically violent with her on four occasions
during their marriage and that police were called on each occasion. Additionally, in
January 2014, G.B. pleaded guilty in Fairfield County Municipal Court to the charge of
aggravated menacing after threatening to inflict serious physical harm to a woman he was
arguing with over the telephone. In July 2014, G.B. pleaded guilty in Franklin County
Municipal Court to the charge of disorderly conduct in connection with an incident
involving a woman he was dating, C.F. G.B. received a 30-day suspended jail sentence for
that offense and a two-year probationary period which included the condition that G.B.
"stay away" from C.F. (July 30, 2014 Conditions of Probation.) G.B. also acknowledged
that he was involved in a domestic dispute while he was living with a friend in California.
According to G.B., the boyfriend of his friend's mother entered the home and pushed her
down the stairs, whereon G.B. "commenced to stomping his ass." (Apr. 13, 2016 Tr. at
57.)
{¶ 37} Though appellant claimed that he has taken responsibility for his act of
domestic violence against K.B., he denied and/or minimized the criminal conduct
attributed to him, and he has blamed K.B. for the domestic violence he committed against
her. For example, he blamed the December 31, 2014 domestic violence on a toothache
and he asserted that K.B. "got shitty with me." (Apr. 13, 2016 Tr. at 39.) G.B. testified
that if he had known K.B. was not to be living with him after he regained custody of the
boys in September 2014 , then the incident that occurred on December 31, 2014 would not
have happened. G.B. maintained that if he divorced K.B. and could "stay single" that
there would be no risk he would commit domestic violence again. (Apr. 14, 2016 Tr. at
139.)
{¶ 38} When asked if a divorce from K.B. would resolve G.B's issue with domestic
violence, the GAL testified as follows:
No. And the reason why is there numerous other incidents in
his record of while not escalating to violence in a household,
of agg (sic) – there are a couple aggravated menacing charges
and the like which demonstrate the same kind of behavior
that were it turn in – were those – for example with [C.F.], I
believe. If that was a domestic situation where they were
living together, I would have – I would have fear that
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 15
something could happen in a domestic violence. I'm not
convinced that [G.B.] has addressed all the issues that are not
specifically related to [K.B.], that lead to the domestic
violence. * * * I have great fears that it would continue
regardless of the spouse or girlfriend that [G.B.] was involved
with.
(Apr. 13, 2016 Tr. at 237-38.)
{¶ 39} K.B. testified that both A.B. and J.B. witnessed G.B.'s violence against her
during the 2010 and 2014 incidents. The juvenile court found that "the parents did fail to
remedy the problems of domestic violence" and that G.B. is affected by "[c]hronic
[e]motional [i]llness" in the form of "domestic violence." (May 26, 2016 Jgmt. Entry at 5,
7.) The record contains clear and convincing evidence in support of the trial court's
finding.
{¶ 40} Similarly, the record overwhelmingly supports the juvenile court's finding
that G.B.'s repeated incarcerations have prevented him from providing care to A.B. and
J.B. G.B. has been jailed, imprisoned, and subject to a stay-away order, all of which have
prevented him from caring for A.B. and J.B. for most of their relatively short lives. G.B.
went to jail following the October 2010 domestic violence offense. He regained physical
custody of the boys in mid-September 2014, but he went to jail again on December 31,
2014. G.B. could not raise bail, and he remained in jail following his arrest and
subsequent conviction. On G.B.'s release from jail in 2015, the five-year stay-away order
prohibited him from having contact with K.B. and A.B. The stay-away order was still in
place when G.B. was arrested in August 2015. G.B. subsequently pleaded guilty to forgery
and tampering with evidence. G.B. remained in jail while the Licking County charges
were pending, he was in prison at the time of the permanent custody hearing, and he was
not scheduled to be released for another 16 months.
{¶ 41} As a consequence of his various incarcerations and the stay-away order,
G.B.'s bid to regain legal custody at the recent custody trial was based largely on the
period of time between mid-September and December 31, 2014, when G.B. had physical
custody of A.B. and J.B. G.B. claims that his custody of the boys during this period of time
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 16
demonstrates that he has the ability to successfully parent A.B. and J.B.1 In our view, this
time frame shows an unsuccessful ability to parent. Just seven weeks after regaining legal
custody of A.B. and J.B., G.B. committed acts that resulted in his second conviction for
domestic violence.
{¶ 42} Pursuant to R.C. 2151.414(D)(1)(e), the juvenile court may also consider the
factors set forth in R.C. 2151.414(E)(7) through (10) in conducting the best-interest
analysis. The juvenile court found that the factor listed in subsection (E)(10) applied
because G.B. had abandoned A.B. and J.B. by failing to have contact with either child for a
90-day period. G.B. takes exception to the trial court's finding that he abandoned A.B.
and J.B., arguing that the weight of the evidence does not support a finding that he
intended to relinquish his parental rights to A.B. and J.B. either during his repeated
incarcerations or the stay-away order.
{¶ 43} R.C. 2151.011(C) provides that "[f]or the purposes of this chapter, a child
shall be presumed abandoned when the parents of the child have failed to visit or
maintain contact with the child for more than ninety days, regardless of whether the
parents resume contact with the child after that period of ninety days." G.B. claims that
other appellate districts treat the 90-day period as creating a rebuttable presumption of
abandonment which may be overcome by evidence that the parent did not intend to
relinquish parental rights. See In re Cravens, 3d Dist. No. 4-03-48, 2004-Ohio-2356; In
re Custody of C.E., 2d Dist. No. 2005-CA-11, 2005-Ohio-5913.
{¶ 44} This court, however, has taken the position that the question whether a
parent intended to relinquish parental rights is irrelevant to a determination of
abandonment for purposes of R.C. 2151.414(E)(10) because "R.C. 2151.011(C) does not
contain a requirement of any particular 'intent' on behalf of the parent; rather, the
provision defines 'abandonment' solely in terms of the time between contacts." In re D.P.,
10th Dist. No. 06AP-780, 2007-Ohio-1703, ¶ 7. Accord In re I.H., 10th Dist. No. 16AP-
463, 2017-Ohio-815, ¶ 16; In re B.B.H., 10th Dist. No. 14AP-882, 2015-Ohio-2347, ¶ 34;
1 We note that K.B. testified she provided care for A.B. and J.B. during the three and one-half month period
between mid-September and December 31, 2014, when G.B. had physical custody of the two boys.
According to K.B., G.B. would frequently leave the home on the weekend and not return until Monday night.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 17
In re A.E., 10th Dist. No. 07AP-685, 2008-Ohio-1375, ¶ 26. Thus, the evidence supports
the juvenile court's finding of abandonment, G.B.'s subjective intent notwithstanding.
{¶ 45} We note that the juvenile court also made a finding that "[G.B.] is
incarcerated for a violation of domestic violence, assault, threats and aggravated
menacing by conviction or guilty plea, until August, 2017 from sentencing on January 16,
2015." (May 26, 2016 Jgmt. Entry at 5.) The record establishes that G.B. served jail time
for two domestic violence convictions, an aggravated menacing conviction, and a
conviction of disorderly conduct, but he was not incarcerated for domestic violence at the
time of the custody trial. Rather, G.B. was serving a prison term for forgery and
tampering with evidence. G.B. argues that this finding significantly impacted the juvenile
court's best-interest analysis. We disagree.
{¶ 46} We read the juvenile court's finding merely as a recitation of some of the
charges for which G.B. has pleaded guilty and received a jail sentence, along with the
acknowledgment that G.B. is currently incarcerated. There is nothing in the juvenile
court's judgment entry suggesting that the juvenile court mistakenly believed that G.B.
had been convicted of a third domestic violence charge. Consequently, any lack of clarity
with regard to the juvenile court's factual finding resulted in no prejudice to G.B.
{¶ 47} G.B. argues that the juvenile court record contains evidence which would
support a finding that returning custody to G.B. would be in the best interest of A.B. and
J.B. For example, G.B. presented credible evidence that he completed an assessment for
alcohol and other drugs and that he substantially complied with all required drug testing
after he regained physical custody of A.B. and J.B. in 2014. G.B. also presented evidence
that he has taken a number of domestic violence classes in between various incarcerations
and while incarcerated. G.B. testified that he recently began participating in an anger
management class at LCC and that he is on a waiting list for parenting classes. He claims
that he has served his current prison term without receiving any conduct reports or being
involved in disputes with other inmates. G.B. believed that he would receive an early
release provided he continued to stay out of trouble in prison. He assured the juvenile
court that he has taken steps to secure employment and adequate housing on his release
from prison.
{¶ 48} In discussing the best interests of his children, G.B. testified as follows:
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 18
Q. So what are you asking this Court to do?
A. To give me some time, give me a caseworker I can – I can
work with and work on a case plan while I'm incarcerated
'cause (sic) I know I can do better incarcerated behind bars on
a case plan. 'Cause (sic) I'm more committed there than I
could be out here. I mean, I'm going to learn – I'm going to be
able to learn more there than I would be out here on the
streets. Just give me some time to work a case plan, give me a
little time to get my head together.
(Apr. 14, 2016 Tr. at 138-39.)
{¶ 49} At best, G.B.'s testimony permits an inference that G.B. will satisfy the
requirements for regaining custody of the boys and for removing the stay-away order at
some point in time following his release from prison. The GAL recommended that the
juvenile court grant custody in favor of FCCS, as did both of the PFSN employees who
were involved with this family.
{¶ 50} Judging the credibility of witnesses is an inherent part of a juvenile court's
responsibility in permanent custody cases. In re Jones, 10th Dist. No. 01AP-616 (Dec. 27,
2001). The underlying rationale of giving deference to the findings of the juvenile court in
permanent custody cases rests with the knowledge that the juvenile court judge is best
able to view the witnesses, observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony. In re T.L.,
10th Dist. No. 07AP-326, 2007-Ohio-4802, ¶ 6, citing In re Abram, 10th Dist. No. 04AP-
220, 2004-Ohio-5435. In this particular matter, we attach significance to the fact the
juvenile court judge who presided over the 2016 custody trial is the same judge who
denied FCCS' motion for permanent custody in 2014 and returned legal custody to G.B.
The juvenile court gave G.B. another chance to prove that he could provide a safe home
for the children in 2014. G.B. lost that chance when he committed domestic violence just
seven weeks after regaining legal custody and, thereafter, committed the crimes in Licking
County that resulted in his current incarceration.
{¶ 51} The juvenile court determined that it was not in the children's best interest
to wait for G.B. to follow through on his most recent promises and assurances. See In re
J.M.D., 4th Dist. No 14CA2, 2014-Ohio-1609 (though the mother claimed she has
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 19
attempted to better herself while incarcerated, the trial court was not required to afford
her reasonable time to prove that she would be able to properly care for the child). On
this record, we cannot say that the juvenile court lost its way in resolving credibility issues
and weighing the relevant evidence in concluding, by clear and convincing evidence, it
was in the best interest of A.B. and J.B. to grant permanent custody to FCCS.
Accordingly, we overrule G.B.'s sole assignment of error as it relates to permanent custody
of A.B. and J.B.
2. Custody of E.B.
{¶ 52} In G.B.'s sole assignment of error, he also contends that the juvenile court's
permanent custody determination regarding E.B. is against the manifest weight of the
evidence. We disagree.
{¶ 53} R.C. 2151.413 sets forth guidelines for determining when a public children
services agency or private child placing agency must or may file a motion for permanent
custody. M.W. at ¶ 34. FCCS moved for permanent custody of E.B., pursuant to R.C.
2151.353(A), which provides, in relevant part, as follows:
If a child is adjudicated an abused, neglected, or dependent
child, the court may make any of the following orders of
disposition:
***
(4) Commit the child to the permanent custody of a public
children services agency or private child placing agency, if the
court determines in accordance with division (E) of section
2151.414 of the Revised Code that the child cannot be placed
with one of the child's parents within a reasonable time or
should not be placed with either parent and determines in
accordance with division (D)(1) of section 2151.414 of the
Revised Code that the permanent commitment is in the best
interest of the child.
{¶ 54} Pursuant to R.C. 2151.414(E), if the court determines, by clear and
convincing evidence, at a hearing held, pursuant to R.C. 2151.353(A)(4), that one or more
of the factors listed in R.C. 2151.414(E)(1) through (16) 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." R.C. 2151.414(E).
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 20
Accordingly, the evidence on this issue pertaining to both G.B. and K.B. must be
examined.
{¶ 55} The juvenile court found, pursuant to R.C. 2151.414(E)(2), that K.B. is
affected by "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 present time and, as
anticipated, within one year after the court holds the hearing." The juvenile court further
found that R.C. 2151.414(E)(4) applied to K.B. because she is "likely to fail to have
commitment to [E.B.] by failing to support, visit and communicate." (Apr. 21, 2016
Permanent Custody Jgmt. Entry at 5.) With regard to G.B., the juvenile court found,
pursuant to R.C. 2151.414(E)(2), that G.B. is affected by domestic violence and that,
pursuant to R.C. 2151.414(E)(13), G.B. is repeatedly incarcerated and his repeated
incarceration prevents him from providing care for E.B. In addition, the juvenile court
found that the factor listed in R.C. 2151.414(E)(10) existed as to both parents because both
K.B. and G.B. had abandoned E.B. by not having contact with her for more than 90 days.
Our review of the record reveals competent, credible evidence to support each of the
findings made by the juvenile court pursuant to R.C. 2151.414(E).
{¶ 56} On cross-examination, K.B. acknowledged that her oldest three children are
living with her mother because she has "a really bad drug problem." (Apr. 14, 2016 Tr. at
6.) K.B. acknowledges in her brief in this court that an alcohol and drug assessment has
identified her as chemically dependent and suffering from bi-polar disorder. The case
plan initially developed by FCCS in this case and approved by the juvenile court identified
several issues that K.B. needed to work on including her alcohol and drug use, her
victimization by her husband's domestic violence, her mental health condition of
depression, and housing and financial stability. Phinney testified that the case plan also
required K.B. to undergo an alcohol and drug assessment and to complete periodical
urine screenings. Phinney testified that K.B. did not meet any of the goals set out in the
case plan. According to Phinney's records, of the 62 drug and alcohol screenings
requested for K.B., she completed only 8. Consequently, K.B. has nothing to corroborate
her claim that she is drug and alcohol free. Phinney also testified that K.B. participated
"[m]inimally" in the domestic violence education classes referred to her and that she was
unsuccessfully terminated from the program. (Apr. 13, 2016 Tr. at 160.)
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 21
{¶ 57} With regard to abandonment under R.C. 2151.414(E)(10), there is no
dispute that K.B. has not visited E.B. since she left the hospital on October 31, 2015. K.B.
claims that she did not visit E.B. because the foster parents reportedly told Phinney that
they did not want to meet her. K.B. acknowledged on cross-examination, however, that
she is aware that meeting the foster parents is not a condition of her visitation with E.B.
She also admitted that on several of the instances where she attempted to reach Phinney
by telephone, she had not left a message. K.B. acknowledged "that's where I was wrong, I
guess." (Apr. 14, 2016 Tr. at 59.) Phinney testified that K.B. came into the office to see
him on April 4, 2016, just days before the custody trial. According to Phinney, K.B. asked
about resuming visitation with A.B. and J.B., but she did not inquire about visiting E.B.
Though the record also contains support for K.B.'s complaints about Phinney's availability
and lack of follow-through, our review of the record reveals sufficient, competent, credible
evidence to support the juvenile court's finding that K.B. abandoned E.B. by failing to visit
her for more than 90 days. At a minimum, the evidence supports the juvenile court's
finding, pursuant to R.C. 2151.414(E)(4), that K.B. is "likely to fail to have commitment to
[E.B.] by failing to support, visit and communicate." (Apr. 21, 2016 Jgmt. Entry at 5.)
{¶ 58} As earlier discussed in this decision, the evidence in the record supports the
juvenile court's finding that G.B. is affected by serious unresolved domestic violence
issues. R.C. 2151.414(E)(2). The juvenile court also found, pursuant to R.C.
2151.414(E)(10), that G.B. abandoned E.B. In our view, the record contains clear and
convincing evidence to support the juvenile court's finding. At a minimum, the record
contains sufficient, competent, credible evidence to support the juvenile court's finding,
by clear and convincing evidence, that G.B.'s repeated incarceration prevented him from
caring for E.B. R.C. 2151.414(E)(13).
{¶ 59} Pursuant to R.C. 2151.353 and 2151.414(E), the existence of even one of the
factors listed in subsection (E)(1) through (16) as to each parent requires a finding by the
juvenile court that E.B. cannot be placed with either parent within a reasonable time or
should not be placed with G.B. Based on our review of the juvenile court record, we find
that competent, credible evidence supports the juvenile court's findings made, pursuant
to R.C. 2151.414(E), as to both G.B. and K.B. Thus, R.C. 2151.353(A)(4) requires this court
to affirm the juvenile court's custody determination regarding E.B. if the evidence
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 22
supports the juvenile court's determination that granting permanent custody to FCCS is in
E.B.'s best interest.
{¶ 60} In conducting the best-interest analysis under R.C. 2151.414, the juvenile
court found that it was in E.B.'s best interest to grant permanent custody to FCCS. In
making this determination, the juvenile court found that E.B.'s need for a legally secure
permanent placement was paramount given E.B.'s "medically fragile" condition. (Apr. 21,
2016 Jgmt. Entry at 3.) The juvenile court found that legally secure permanent placement
for E.B. cannot be achieved without a grant of permanent custody to the agency. As noted
in connection with the best-interest analysis as to A.B. and J.B., this court has observed
that legally secure permanent placement requires more than a stable home and income
but also requires an environment that will provide for a child's particular needs. K.M. at ¶
28. As previously detailed, E.B. suffers from several serious medical conditions that
require round-the-clock care. Her medical conditions include paralyzed vocal chords,
Stridor syndrome, a congestive heart defect, and a prematurely closed skull. She breathes
by means of a tracheotomy and breathing tube, and she receives nutrition exclusively
through a feeding tube.
{¶ 61} The record shows that E.B. remained at the hospital for the first two months
of her life and that she never resided with K.B. K.B. claimed that she would be able to care
for E.B. with proper training and the help of a nurse. She was unaware, however, that
E.B.'s breathing tube had to be cleared every three or four minutes. She estimated that it
should be cleaned "[p]robably every day." (Apr. 14, 2016 Tr. at 43.) When asked if she
received any training at the hospital during the first two months of E.B.'s life, she stated
that she received training in bottle feeding. Yet K.B. acknowledged on cross-examination
that E.B. receives all her nutrition through a feeding tube. Additional relevant evidence
produced at the custody trial establishes that E.B. has formed some bond with her foster
mother and that E.B.'s foster mother wishes to adopt her.
{¶ 62} G.B.'s appellate brief contains little argument relevant to E.B. G.B. was in
prison when E.B. was born, and he has never met his daughter. He was also unaware that
E.B. suffers from several serious medical conditions until he learned of them at the
custody trial. G.B. testified that he has doubts about the paternity of E.B. because K.B.
allegedly told him E.B. was the child of one of G.B.'s friends.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 23
{¶ 63} G.B. did challenge the trial court's finding that he "is incarcerated for a
violation of 2919.25(A), domestic violence to wife and child, [A.B.] on December 31,
2014." (Apr. 21, 2016 Jgmt. Entry at 5.) As we have discussed, G.B. was charged with
domestic violence against A.B., but he did not plead guilty to that charge. G.B. was
convicted and sentenced to a jail term for domestic violence against K.B. both in 2010 and
2014. He also has an extensive history of domestic violence and violence against women.
Even though G.B.'s current incarceration is for convictions of forgery and tampering with
evidence, not domestic violence, the record establishes clearly and convincingly that G.B.
has unresolved issues with domestic violence. Moreover, because E.B.'s need for legally
secure permanent placement is critical due to her serious medical conditions, it is difficult
to conceive how placement with either parent could possibly be in the best interest of E.B.
Thus, the juvenile court's finding regarding the reason for G.B.'s current incarceration,
though erroneous, did not unfairly prejudice his effort to retain permanent custody of E.B.
{¶ 64} For the foregoing reasons, we find that the evidence in the record supports
the juvenile court's finding that E.B. cannot or should not be placed with either K.B. or
G.B. and that permanent placement with FCCS is in the best interest of E.B. Accordingly,
we hold that the juvenile court did not err when it awarded custody of E.B. to FCCS and
terminated the parental rights of both K.B. and G.B. Having so held, we overrule G.B.'s
sole assignment of error.
B. K.B.'s First Assignment of Error
{¶ 65} In her first assignment of error, K.B. argues that the trial court erred by
failing to appoint an independent psychiatrist to assist her in the presentation of her case
when the state presented evidence of the mother's mental health. We disagree.
{¶ 66} Termination of parental rights has been referred to as " 'the family law
equivalent of the death penalty in a criminal case.' " In re Hayes, 79 Ohio St.3d 46, 48
(1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). Consequently, parents
" 'must be afforded every procedural and substantive protection the law allows.' " Hayes
at 48, quoting Smith at 16. The evidence establishes that K.B. underwent a court-ordered
mental health assessment in connection with the neglect and dependency complaint. The
evaluation identified her as chemically dependent and suffering from bi-polar disorder.
K.B. testified at the custody trial that she suffers from intermittent bouts of severe
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 24
depression that have required multiple hospitalizations. She also maintained that she has
undergone several brain surgeries, but she did not produce medical records to
corroborate that claim.
{¶ 67} K.B. did not move the juvenile court for the appointment of a psychiatric
expert to assist her in the case, and FCCS did not submit the testimony of a psychiatric
expert in support of the motion for permanent custody. Nevertheless, K.B. contends that
due process required the juvenile court to, sua sponte, appoint a psychiatrist to assist her
in this case. We disagree.
{¶ 68} We find the case of In re Shaeffer Children, 85 Ohio App.3d 683 (3d
Dist.1993), to be instructive on this issue. In that case, the department of children's
services found that the Schaffer's minor children were dependent due to the mother's
inability to care for the children and the father's lack of concern and support. At the
permanent custody trial, the juvenile court denied the mother's motion for the
appointment of a psychiatric expert to assist in her defense. The juvenile court
subsequently granted permanent custody to the department for purposes of adoption.
The mother appealed. The Third District Court of Appeals reversed the juvenile court's
judgment, concluding that the juvenile court erred when it denied the indigent mother's
motion for appointment of a psychiatrist. Id. at 691. Therein, the Third District stated:
[W]e find the private interests of Kim Shaeffer and her two
minor children to be compelling. In cases such as this, where
the parent's mental health is the principal issue, the risk of
erroneous deprivation is a serious one and the merits of the
proposed procedural safeguard are significant. Finally, we
find the state's interest in economic and administrative
efficiency to be comparatively weak and the prospective
additional burden to be relatively slight. We therefore
conclude that Kim Shaeffer's motion for a court-appointed
psychiatric expert to assist in the preparation of her defense
should have been granted.
Id.
{¶ 69} In reaching this conclusion, the Third District issued the following
cautionary language:
Having reached this conclusion, we believe it important to
clarify the breadth of our decision. We are not holding that
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 25
due process requires the appointment of a psychiatric expert
in every permanent custody proceeding where a parent's
mental health is made an issue. However, in this case,
because the indigent parent's mental or emotional health was
clearly the predominant issue from the outset and ultimately
became the determinative issue, and because the parent made
a timely request for such assistance, we hold that the
assistance of a court-appointed psychiatric expert was
mandated by the Fourteenth Amendment to the United States
Constitution and by Section 16, Article I of the Ohio
Constitution.
Id.
{¶ 70} In a subsequent decision examining Shaeffer, the Third District held that
the appointment of a psychiatrist to assist a parent in a permanent custody hearing is
unnecessary where the parent's mental condition is not the predominate issue in the case,
regardless of whether the parent timely requested such an appointment. In re Sherman,
3d Dist. No. 5-04-47, 2005-Ohio-5888, ¶ 26, following Shaeffer.
{¶ 71} In this case, K.B. did not make a request for the appointment of a
psychiatric expert to assist her at the custody trial. K.B. has not cited any case law
requiring the appointment of a psychiatric expert to assist a parent in a permanent
custody proceeding in the absence of a request for such an appointment. Nor has this
court found any such case. Moreover, as noted above, the juvenile court predicated its
custody determination primarily on E.B.'s "medically fragile" condition. (Apr. 21, 2016
Jgmt. Entry at 3.) The juvenile court expressly stated that other considerations, such as
K.B.'s mental health condition, were secondary. On this record, we find that K.B. was not
entitled to the appointment of a psychiatric expert and that due process did not require
the juvenile court to, sua sponte, appoint such an expert. See In re Hogle, 10th Dist. No.
99AP-944 (June 27, 2000) (parents' trial counsel was not ineffective for failing to move
the juvenile court for the appointment of a psychiatric expert because the parents'
substance abuse was the principal or primary reason for the complaint for permanent
custody, not the parents' mental condition).
{¶ 72} For the foregoing reasons, K.B.'s first assignment of error is overruled.
Nos. 16AP-352, 16AP-395, 16AP-443, and 16AP-448 26
C. K.B.'s Second Assignment of Error
{¶ 73} In K.B.'s second assignment of error, K.B. argues that the juvenile court
erred in finding, by clear and convincing evidence, that awarding permanent custody to
FCCS is in the best interest of E.B. and that E.B. cannot or should not be returned to
either parent within a reasonable time. As noted in connection with G.B.'s sole
assignment of error, FCCS moved for permanent custody of E.B. pursuant to R.C.
2151.353(A)(4). In overruling G.B.'s sole assignment of error, we determined that the
clear and convincing evidence in the record supports the juvenile court's conclusion,
pursuant to R.C. 2151.353(A)(4), that E.B. cannot or should not be placed with either K.B.
or G.B. and that permanent placement with FCCS is in the best interest of E.B.
Accordingly, for the reasons set forth in our ruling on G.B.'s sole assignment of error, we
overrule K.B.'s second assignment of error.
V. CONCLUSION
{¶ 74} Having overruled appellants' assignments of error, we affirm the judgments
of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgments affirmed.
KLATT and BRUNNER, JJ., concur.
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