In re C.M. (aka C.B.) Adjudicated Dependent Child. In re J.B. Adjudicated Abused and Dependent Child.
Gieske, Cincinnati, Ohio, for Appellant Mother.
A. Lavelle, Athens, Ohio, for Appellant Father.
M. Saunders, Athens County Assistant Prosecuting Attorney,
Athens, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
MATTHEW W. MCFARLAND, JUDGE.
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.
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.
Accordingly, we overrule all of the assignments of error and
affirm the trial court's judgment.
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 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.
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.
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.
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.
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
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.
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
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.
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
The court also considered the maternal grandmother's pro
se motion for custody and motion to intervene. The court took
her motions under advisement.
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.
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.
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
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.
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.
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.
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."
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
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.
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
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.
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.
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.
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."
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.
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.
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.
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
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
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.
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."
With respect to the children's wishes, the court
determined that the children are unable to directly express
their own wishes.
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.
ASSIGNMENTS OF ERROR
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
Third Assignment of Error:
The trial court's decision summarily overruling
grandmother's motion for custody of CM. was against the