Court of Appeals of Ohio, Eleventh District, Ashtabula
from the Ashtabula County Court of Common Pleas, Juvenile
Division, Case No. 2013 JC 00075.
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).
Noon Miller, Law Offices of Eileen Noon Miller, LLC,
(Guardian ad litem).
CYNTHIA WESTCOTT RICE, P.J.
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.
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." 
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.
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
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.
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.
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.
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.
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
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.:
"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."
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.
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.
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.
Appellant testified she was not permitted to leave
Pennsylvania after her release in November 2015 due to
restrictions of parole. These ...