In re C.M., Case No. 17CA16
| Citation | 2017 Ohio 9037 |
| Decision Date | 08 December 2017 |
| Docket Number | Case No. 17CA17,Case No. 17CA16 |
| Parties | In re C.M. (aka C.B.) Adjudicated Dependent Child. In re J.B. Adjudicated Abused and Dependent Child. |
| Court | United States Court of Appeals (Ohio) |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Krista Gieske, Cincinnati, Ohio, for Appellant Mother.
Frank A. Lavelle, Athens, Ohio, for Appellant Father.
Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
{¶1} V.M. and J.B. appeal the trial court's judgment that awarded Appellee, Athens County Children Services, permanent custody of their two biological children: four-year-old C.M. and two-and-one-half-year-old J.B. V.M., the children's mother, asserts that the trial court erred (1) by denying her motion to continue the permanent custody hearing in order to secure her presence, (2) by denying the maternal grandmother's motion to intervene, and (3) by overruling the maternal grandmother's motion for custody of the children. Because the trial court employed alternate means to allow the mother to review the first day of the permanent custody hearing, we are unable to conclude that the court abused its discretion by overruling the mother's motion to continue the permanent custody hearing. However, even if the mother has standing to challenge the trial court's decision to deny the grandmother's motion to intervene, the mother cannot show that the court abused its discretion. Additionally, even if the trial court erred in either of the foregoing two respects, the mother cannot demonstrate a prejudicial effect requiring reversal. We further disagree with the mother that the trial court erred by overruling the grandmother's motion for custody. The record contains ample evidence to support the court's determination that placing the children in Appellee's permanent custody is in their best interest. Therefore, placing them in the grandmother's custody is not.
{¶2} J.B., the children's father, challenges the trial court's finding that placing the children in Appellee's permanent custody is in their best interest. The father additionally asserts that Appellee failed to comply with R.C. 2151.412 and chose the least restrictive placement for the children during the pendency of the case. Neither of the father's arguments have merit. The evidence in the record fully supports the trial court's decision to grant Appellee permanent custody of the children. Moreover, R.C. 2151.412 sets forth guidelines for case plans and is inapplicable at the permanent custody hearing stage.
{¶3} Accordingly, we overrule all of the assignments of error and affirm the trial court's judgment.
{¶4} On November 16, 2015, Appellee filed motions that requested temporary emergency custody of the two children. The motions alleged the following circumstances warranted a grant of temporary emergency custody. On November 12, 2015, fifteen-month-old J.B. presented to O'Bleness Memorial Hospital with swelling and redness of his arm. The mother claimed that J.B. had fallen off the bed, but then later stated that he had fallen off the couch. The mother did not provide a time of injury. O'Bleness diagnosed J.B. with a spiral fracture of the left humerus and transferred him to Nationwide Children's Hospital. A subsequent body scan revealed multiple fractures in various states of healing on both his arms and legs: (1) bilateral humerus fractures in both of his arms with significant tenderness; (2) bilateral distal humerus fractures that occurred within the last week to ten days; (3) bilateral proximal tibia fractures in both legs that were in the healing process; and (4) bilateral distal femur fractures in both legs that were in the end stages of healing. Additionally, the right side of J.B.'s face was bruised, and he had bite marks on his right arm. Medical personnel found J.B.'s injuries highly concerning for child abuse, and neither parent offered an adequate explanation for J.B.'s injuries. The trial court granted Appellee's motions.
{¶5} Appellee also filed an abuse, neglect, and dependency complaint concerning J.B. and a dependency complaint concerning C.M. that reiterated the foregoing facts. Appellee requested temporary custody of the children.
{¶6} Appellee developed case plans for the family. The case plan required (1) the mother to continue substance abuse counseling at Health Recovery Services (HRS); (2) the father to schedule a substance abuse evaluation at HRS within thirty days of adjudication, attend the appointment, and follow treatment recommendations; (3) the parents to submit to drug screens; and (4) the parents to work with a parent mentor to learn about child development and milestones.
{¶7} On March 16, 2016, the parents admitted that C.M. is a dependent child based upon the unexplained injuries to J.B. and that J.B. is an abused child based upon his unexplained injuries. The court thus adjudicated C.M. a dependent child and J.B. an abused child. The court dismissed J.B.'s neglect and dependency allegations.
{¶8} A May 2016 Semiannual Administrative Review (SAR) indicated that the parents made insufficient progress regarding their case plan requirements. The SAR states that (1) the father did not complete an evaluation at HRS and he was terminated from the program; (2) the mother is minimally compliant with HRS and at least one of her drug screens did not show suboxone that she is prescribed; (3) the parents were charged with third-degree felonies as a result of J.B.'s injuries; and (4) the parents have participated with the parent mentor on a very minimal level.
{¶9} The SAR noted that Appellee started a home study for the maternal grandmother, but due to the grandmother's lack of independent housing, the home study could not be completed.
{¶10} On September 16, 2016, Appellee filed a motion to modify the disposition to permanent custody. Appellee alleged that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent and that placing the children in its permanent custody is in their best interest. Appellee asserted that although the parents have complied with some aspects of the case plan, they have not explained the major concern—how J.B. sustained multiple fractures throughout his extremities. Appellee additionally alleged that the mother has not completely complied with her substance abuse treatment and is in danger of losing her suboxone prescription due to her minimal compliance with treatment. Appellee asserted that the father contacted HRS and attended one appointment, but he did not complete a substance abuse evaluation and was terminated due to noncompliance. Appellee further asserted that placing the children in its permanent custody is in their best interest.
{¶11} On January 3, 2017, the maternal grandmother filed a pro se motion that requested the court to join her as a party to the case. She also filed a pro se motion for custody of the children.
{¶12} On February 10, 2017, the father filed a motion to continue the permanent custody hearing. He alternatively requested the court to continue the temporary custody order so that he may demonstrate that he can provide proper care for the children and demonstrate compliance with the case plan.
{¶13} On February 17, 2017, the court held a permanent custody hearing. At the start, the court noted that the Sheriff's Office had failed to execute the warrant to convey the mother from prison to the court for the permanent custody hearing. The mother's attorney requested a continuance in order to secure her presence. The court further allowed the father's attorney to state his reasons for requesting a continuance. The court decided to take both continuance motions under advisement and to proceed with the hearing, "with the understanding that any and all witnesses called today would be subject to recall if something is presented today that, for example, [the mother's attorney] does not believe that without consulting with his client he would be in a position to fully get through cross-examination." The court further noted that it would schedule another hearing date in order to secure the mother's presence.
{¶14} The court also considered the maternal grandmother's pro se motion for custody and motion to intervene. The court took her motions under advisement.
{¶15} ACCS caseworker Tara Carsey testified that the parents did not complete all aspects of the case plan. She stated that the father did not comply with the substance abuse requirements of the case plan. Ms. Carsey related that the father bought suboxone off the street to treat his drug habit. She explained that the father completed a couple of intakes with HRS, but he did not follow through and was discharged from the program. She reported that the father re-entered the program after Appellee filed its permanent custody motion. Ms. Carsey additionally testified that the father did not complete a mental health assessment.
{¶16} Ms. Carsey stated that the mother was "minimally compliant or non compliant" with HRS. She further related that Appellee had domestic violence concerns, but until November 2016, the mother denied domestic violence occurred. Ms. Carsey testified that in November 2016, the mother finally admitted that domestic violence had occurred throughout her relationship with the father.
{¶17} Ms. Carsey reported that although both parents entered guilty pleas to charges arising out of J.B.'s injuries, they could not explain how J.B.'s injuries occurred. Ms. Carsey stated that the mother pleaded guilty to two third-degree felonies—child endangering and permitting child abuse—and was sentenced to serve three years in prison. She indicated that the father pleaded guilty to third-degree felony child endangering and was sentenced to four years of community control.
{¶18} Ms. Carsey testified that she believes permanent custody is in the children's best interests, because Appellee still...
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