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In re M.B.

Court of Appeals of Ohio, Eleventh District, Ashtabula

August 21, 2017

IN THE MATTER OF: M.B.

         Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 2013 JC 00075.

          Judith M Kowalski, (For Appellant, Rachel Smithers).

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M Pratt, Assistant Prosecutor, Ashtabula County Courthouse, and Margaret A. Draper, Assistant Prosecutor, (For Appellee, Ashtabula County Children Services Board).

          Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, (Guardian ad litem).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Rachel Smithers, biological mother of M.B., appeals from the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting the Ashtabula County Children Services Board ("ACCSB"), appellee herein, permanent custody of the child. We affirm.

         {¶2} M.B. was born on May 3, 2011, to her biological parents, appellant, and Colton Bond, who were unmarried and resided in the Commonwealth of Pennsylvania. ACCSB became involved with M.B. upon appellant's arrest for child endangering and drug paraphernalia in Ashtabula County, Ohio. On September 15, 2013, an ex parte emergency order was granted placing M.B. in the temporary custody of ACCSB. The following day, ACCSB filed a complaint for temporary custody, alleging that the child was neglected and dependent. An emergency shelter-care hearing was held and the court found probable cause for M.B.'s removal, to wit: "Mom was stopped for speeding and a large amount of morphine was found in the vehicle. At the time, it was unclear if the child had ingested any of the drug and she was taken to the hospital. Mom was clearly under the influence and could not give any information regarding the child or any relatives who may be able to care for the child." [1]

         {¶3} An adjudicatory hearing was held on October 7, 2013 with respect to appellant; appellant's counsel stipulated she was incarcerated in the Ashtabula City Jail at the time the complaint was filed and subsequently incarcerated in Crawford County, Pennsylvania at the time of the hearing. The record is not entirely clear as to what crime prompted the Pennsylvania incarceration but, given the sequence of events, appellant apparently had charges pending in the Commonwealth prior to her arrest in Ohio. The court accordingly concluded the child was neglected as alleged.

         {¶4} The matter proceeded to a disposition hearing on December 2, 2013, at which ACCSB presented evidence that it was awaiting a home study of a maternal uncle in Pennsylvania who had visited the child one time; M.B. remained in foster care while appellant remained incarcerated. A case plan was adopted and the child remained in the temporary custody of ACCSB.

         {¶5} On March 17, 2014, a semi-annual review hearing was held. The magistrate ultimately found appellant remained incarcerated and that M.B. was doing fine in the foster home. Due to her incarceration, there was no evidence that appellant had complied with the case plan.

         {¶6} On September 12, 2014, ACCSB filed a motion for review, noting the sunset day for extension of temporary custody had inadvertently passed on August 16, 2014. In its motion for review, ACCSB requested M.B. be placed in its permanent custody. The court held an annual review/disposition review hearing on September 22, 2014. During the hearing, the court found the child had no contact with either parent for a year and that both parents continued to be incarcerated. A permanent custody hearing was ultimately scheduled for April 2, 2015. Appellant later moved the court to continue the hearing date for June 8, 2015. The motion was granted.

         {¶7} On June 8, 2015, the court held a hearing on ACCSB's "Motion for Review/Permanent Custody." At the hearing, ACCSB indicated an intention to amend its motion; as such, the court reset the matter for a hearing on all motions for August 10, 2015. On June 9, 2015, ACCSB filed a motion requesting modification of temporary custody to permanent custody, alleging M.B. had been in temporary custody of ACCSB for 12 or more months of a consecutive 22-month period; that the child cannot be placed with either parent within a reasonable time or the child should not be placed with either parent; and the child is abandoned.

         {¶8} The matter came on for hearing on August 10, 2015, but was rescheduled due to appellant's inability to leave the Commonwealth of Pennsylvania. The case was ultimately set for hearing on March 9, 2016. At the hearing, ACCSB caseworker Kathy Kasputis testified appellant has had no contact with M.B. since September 2013, the date ACCSB obtained temporary custody of the child. Ms. Kasputis noted appellant was incarcerated from September 2013 until November 2015. Appellant did initially request visitation. The facility in which she was incarcerated, however, declined any visitation due to a conviction for child endangerment.

         {¶9} Ms. Kasputis testified she investigated potential placement options for M.B., including the child's paternal grandmother, who was not in a position to care for the child. Dawn Kinnard, a maternal aunt of the child was willing to assume custody; however, no interstate home study was requested because, according to Ms. Kasputis, Ms. Kinnard did not have the stability to assume custody. Similarly, other relatives were also considered but did not qualify due to their lack of stability. Ms. Kasputis was also in contact with a family friend, Nancy Knowles, who had cared for M.B. in 2013 while appellant was working a third-shift job. Ms. Knowles was not considered for placement because, according to Ms. Kasputis, she failed to file a motion for legal custody after being advised by a caseworker to do so. At the time of the hearing, no relative or third party sought to intervene, requested visitation, or moved for legal custody of M.B.

         {¶10} Ms. Kasputis testified appellant's case plan required her to have a drug and alcohol assessment as well as a mental health assessment, which she completed through the facility in which she was incarcerated. Mother was also required to establish housing and the necessary stability for the child. According to Ms. Kasputis, appellant had made significant progress with her life and case plan. Because of the relationship M.B. had developed with her foster family, however, Ms. Kasputis recommended permanent custody be awarded to ACCSB. She opined that M.B.:

         {¶11} "is the stablest she's been in this home in her short life, four years. She lived in this home two-and-a-half years. Um, I just think it's in her best interests at this point because she knows the foster parents as Mom and Dad. There's been efforts to show her pictures of her parents and she doesn't know who they were, and that was, like, shortly after she came into care."

         {¶12} At the time of the hearing, M.B. had resided with her foster family for two and one-half years. The foster parents have stable employment, stable housing, and intend to adopt.

         {¶13} Appellant testified that, during her incarceration, she had completed multiple programs and achieved significant progress through the Pennsylvania correctional system. During her incarceration, appellant completed a Leading in Faith & Education course; received a certificate for completion of a Therapeutic Community program; completed a boot camp program where she received a Certificate of Recognition naming her "Most Inspirational;" she also completed the first phase of drug treatment; and a Trauma, Recovery, and Resilience program. Appellant complied with conditions of her parole and remained on probation at the time of the hearing. She testified she has not used illegal substances since her arrest in September 2013.

         {¶14} During her incarceration, appellant requested visitation, but was not granted permission due to her conviction for child endangering. As a resident of a subsequent treatment program, mother testified she again requested visitation with M.B.; her request, however, was denied by ACCSB because the facility in which she was residing was near Harrisburg, Pennsylvania and was therefore too far away. Appellant acknowledged that she could have selected a facility closer to Ohio, but she elected treatment near Harrisburg because she had a network of stable family members near that location. She testified her family and support system helped her remain stable. And if she selected a city closer to Ohio, she feared she might be exposed to conditions that might cause her to relapse.

         {¶15} Appellant testified she was not permitted to leave Pennsylvania after her release in November 2015 due to restrictions of parole. These ...


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