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In re C.M.

Court of Appeals of Ohio, Fourth District, Hens

December 8, 2017

In re C.M. (aka C.B.) Adjudicated Dependent Child. In re J.B. Adjudicated Abused and Dependent Child.

          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.

          DECISION AND JUDGMENT ENTRY

          MATTHEW W. MCFARLAND, JUDGE.

         {¶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 CM. 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.

         I. FACTS

         {¶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 CM. 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 CM. 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 CM. 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 Sheriffs 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 does not know who caused J.B. 's injuries, how they were caused, or when they were caused. She indicated that her "primary concern is safety and not knowing how [J.B.] sustained 12 broken bones." She also stated that the father has not shown that he has the ability to provide care for the children.

         {¶19} ACCS caseworker Stephanie Blaine testified that she investigated several relative placements throughout the case. Ms. Blaine related that Appellee completed a home study for the maternal grandmother, but it was denied. She explained that Appellee denied the maternal grandmother's home study because she "lived in a couple of different places, " and "the safety audit did occur in a couple of different homes." However, Ms. Blaine stated that the primary reason Appellee denied the home study resulted from the family's failure to offer an adequate explanation for J.B.'s broken bones. Ms. Blaine explained that J.B. spent some time in the grandmother's care when visiting with her and Appellee had no knowledge who perpetrated the abuse upon J.B.

         {¶20} Ms. Blaine reported that even though J.B.'s parents were convicted in relation to the abuse, Appellee still had concerns about placing the children with the grandmother. She explained that when the mother is released from prison, Appellee would be concerned about the grandmother's ability and willingness to protect the children from their mother. Ms. Blaine stated that she informed the grandmother that if Appellee placed the children in her home, the mother could not have any contact with the children. Ms. Blaine related that the grandmother responded that "it would be hard, " but that "she would enforce no contact." Ms. Blaine indicated that she found the grandmother's statement dubious, and she thought keeping the mother from the children would "be very difficult for [the grandmother] to do." Ms. Blaine additionally explained that the grandmother does not believe that her daughter-the children's mother-committed abuse.

         {¶21} The children's foster mother testified that the children have been in her home for the past fifteen months. She stated that when J.B. entered her home, he had casts on both of his arms. She also related that J.B.-at fifteen months of age-was not walking, and that he did not start walking until a few months later. The foster mother explained that when J.B. first entered her care, she did not have any concerns about his behavior, but in the past six months or so, he has displayed some concerning behavior. She stated that J.B. "screams a lot, " is "getting more * * * aggressive towards the other children, " and "throws food a lot." The foster mother believes that J.B.'s problems appear "more intense" after visits with his parents. She related that in the car after a visitation, J.B. "screams at the top of his lungs most of the way home, " and sometimes "he'll do the screaming on the way [to visits] also." She indicated that she has pulled the vehicle to the side of the road because sometimes both J.B. and CM. start screaming and it gets "pretty loud."

         {¶22} The foster mother indicated that when CM. entered her home, he did not speak for the first five or six months. She explained: "[h]e was absolutely non verbal except for the screaming." The foster mother additionally reported that CM. did not sleep "at all" when he first entered her home. She stated that CM. currently receives speech, physical, and occupational therapy and is making progress.

         {¶23} She stated that both children need constant supervision and that she is unable to leave them unattended. The foster mother reported that supervising J.B. and CM. "is very difficult." She explained that she does "not leave the room that the boys are in at all." The foster mother related that CM. is aggressive, and that CM. directs some of his aggression towards J.B.

         {¶24} The father testified that in November 2015, J.B. went to the doctor and he received some shots. A few days later, he and the mother noticed that J.B. 's arm was red and swollen. They believed that the shots caused it. A day or so later, he and the mother got into an argument about whether to take J.B. to the hospital. He claimed that the mother did not want to take J.B. to the hospital "because she was worried of Children Services getting involved." The father stated that he convinced the mother to take the child to the hospital. The father related that when a nurse informed him and the mother that J.B. had multiple fractures, he and the mother were in disbelief. He explained that J.B. had been completely mobile and had not appeared to be in any pain. The father indicated that he thought CM. may have caused J.B.'s injuries. The father explained that CM. did "a lot of mean things to [J.B.]. * * * [H]e'll get in the crib with him. He'll jump on him He'll pull down the hallway before we can even get to him." He agreed that the doctors informed him that CM. could not have possibly caused J.B.'s injuries, but he "still don't [sic] believe that." The father testified that he does not have any idea how J.B. sustained the injuries. He agreed that the only people who provided care for J.B. were the mother, the maternal grandmother, and himself, but he still did not know how J.B. sustained the injuries. He related that J.B.'s injuries were "a huge shock" and he "can't get over how it could happen."

         {¶25} The maternal grandmother testified and stated that she believes keeping the children in the family would be in their best interest. She related that she has a good relationship with the children and that she has helped care for them since they were born. The grandmother stated that she would keep the mother away from the children, if the court placed them in her custody.

         {¶26} On cross-examination, the grandmother indicated that she did not believe J.B. was injured. She stated that she did not believe it, "because [she] was with [J.B.]" and he "did not seem like he was hurt at all ever." The grandmother explained that the mother informed her that J.B. fell from the couch, but other than that, she did not believe J.B. was injured.

         {¶27} The mother testified that the week before she took J.B. to the hospital, J.B. had a doctor's appointment, and the doctor did not mention that J.B. exhibited any signs of injury. The mother stated she also did not notice any signs to indicate J.B. was injured or in pain. She explained that a few days later, J.B. fell off the couch. The mother stated that J.B. started crying, but after a few moments, he seemed fine. She indicated that the next morning, his arm appeared swollen but he did not seem to be in much pain. However, later in the day he started crying and she thought that "something else was wrong." The mother stated that the father was at work, and she waited for him to return home before deciding whether to take J.B. to the hospital. She explained that she wanted to ask him "if he thought it was that serious." The mother testified that when the father returned home, they discussed it and she took J.B. to the hospital. She related that when the doctors told her that J.B. had several fractures she "was in shock." The mother stated that she had no prior indication that J.B. had other fractures, because "he never really showed" any signs of injury. The mother testified that she entered guilty pleas to permitting child abuse and endangering children and was sentenced to serve three years in prison.

         {¶28} The children's guardian ad litem testified that he believes placing the children in Appellee's permanent custody is in their best interest. He explained that he did not understand how J.B. had multiple fractures throughout his body, yet neither the parents nor the grandmother-all of whom helped care for the child-seemed to notice that J.B. was injured, but instead, all described the child as "perfectly happy and pain free." The guardian ad litem stated that the child "had 12 broken bones, and some of them were fairly severe, and that nature of these bones based on the discovery if there are spiral fractures, you know, which there is that take a certain amount of force to produce that kind of a fracture. [sic]" He stated that his principal concern is that no one noticed the child acting unusual, even though he had twelve broken bones. The guardian ad litem explained: "nobody, from any of the testimony nobody has any idea how these injuries occurred. Who caused them, and uh, in light of that profound ignorance with respect to the safety of the children[, ] I don't see how I could recommend that they be returned."

         {¶29} On March 23, 2017, the trial court granted appellee permanent custody of the two children. The court also denied the mother's request for a continuance, the grandmother's motion to intervene, the grandmother's motion for custody, and the father's request to extend the temporary custody order so that he may have additional time to prove that he can provide proper care for the children.

         {¶30} In denying the mother's motion to continue, the court pointed out that the Sheriffs Office failed to transport the mother for the first day of the hearing, even though the court had issued a warrant to convey. The court indicated that it nonetheless chose to proceed with the hearing and indicated that any witnesses would be subject to recall and that a recording of the hearing would be delivered to the mother. The court determined that the lack of a continuance did not prejudice the mother.

         {¶31} The court allowed the maternal grandmother to be present throughout the hearings, but denied her motions. The court denied the father's request to extend the temporary custody order to afford him additional time to demonstrate that he can provide the children with adequate care.

         {¶32} Turning to Appellee's permanent custody motion, the court found that J.B. is an abused child and that the parties agreed to the abuse adjudication, as well as C.M.'s dependency allegation. The court additionally noted that the parents were convicted of felony charges for their roles in the abuse, the mother is serving a prison term, and the father is on community control. The court stated that although the exact perpetrator of the abuse is unknown, the parents and their family members were the only individuals who had custody or control of the children before their removal.

         {¶33} The court found that the children "are experiencing and exhibiting serious behavioral problems that currently require nearly constant line of sight supervision." J.B. "often finds himself the victim of physical violence by [CM.], and is now demonstrating physical aggression of his own in addition to his vocal outbursts, and general control issues." The court stated that the children "deserve a real chance to grow and mature in a nurturing environment."

         {¶34} The court found that R.C. 2151.414(E)(5), (6), and (16) apply, and thus, that the children cannot be placed with either parent within a reasonable time or should not be placed with either parent. The court noted that the mother is in prison for felony child endangering and permitting abuse, with J.B. as the victim, and that the father is on community control for child endangering.

         {¶35} The court also considered the children's best interest. With respect to their interactions and interrelationships, the court found that CM. "is openly hostile and physically aggressive, " especially with J.B., and that "[t]here is very little positive bonding." The court observed that the foster mother stated she "has to attempt to maintain an actual 'line of sight' to feel comfortable supervising these boys."

         {¶36} With respect to the children's wishes, the court determined that the children are unable to directly express their own wishes.

         {¶37} The court considered the children's custodial history and found that until their November 2015 removal, the children lived with their parents. The court also examined the children's need for a legally secure permanent placement and whether they can achieve it without granting Appellee permanent custody. The court determined that neither parent could provide the children with a legally secure permanent placement. The court noted that both parents entered guilty pleas to endangering children, and that the mother pleaded guilty to permitting child abuse. The court found it significant that "neither parent presented any testimony or evidence * * * even attempting to explain away those pleas and convictions." The court noted the grandmother's interest in obtaining custody of the children, but further recognized that the mother's return to the area after her release from prison could jeopardize the children's safety. Therefore, the court determined that placing the children in Appellee's permanent custody is in their best interest. The court thus granted Appellee's motions for permanent custody of the children.

         II. ASSIGNMENTS OF ERROR

         {¶38} The mother raises three assignments of error.

First Assignment of Error:
The trial court committed prejudicial error and deprived mother of her constitutional rights to confrontation and due process by denying trial counsel's motion for a continuance and proceeding with the permanent custody hearing despite mother's defensible absence.
Second Assignment of Error:
The trial court erred in summarily overruling grandmother's motion to intervene in the permanent custody action.
Third Assignment of Error:
The trial court's decision summarily overruling grandmother's motion for custody of CM. was against the ...

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