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In re B.S.

Court of Appeals of Ohio, Fifth District, Holmes

February 14, 2018

IN THE MATTER OF: B.S.

         Appeal from the Holmes County Court of Common Pleas, Probate and Juvenile Division case no. 14N198

          For Plaintiff-Appellee: SEAN WARNER

          For Defendants-Appellants: DAVID M. HUNTER, MONICA L. MIYASHITA Attorney for Opal Stevens

          Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

          OPINION

          DELANEY, J.

         {¶1} Defendant-appellant Opal Stevens ("Mother") appeals from the September 22, 2017 Judgment Entries of the Holmes County Court of Common Pleas, Probate and Juvenile Division, granting appellee Holmes County Department of Job and Family Services, Children Services Division ("Agency") permanent custody of her daughter I.S. and her son B.S.[1]

         FACTS AND PROCEDURAL HISTORY

         {¶1} Mother has several children but relevant here are I.S., born October 25, 2010, and B.S., born September 19, 2012. I.S.'s biological father is not a party to the instant case. Father of B.S. is Thomas Miller ["Father"].[2] At the time this case arose, Mother and Father lived with B.S. and his siblings I.S. and John Doe in Holmes County, Ohio.

         {¶2} On November 23, 2014, the Agency received a report that Mother threw a sippy cup at B.S., yelled at him, and threatened to "cut his hands off" if he did not behave. On December 8, 2014, the Agency filed a complaint alleging I.S. and B.S. to be neglected and abused.

         {¶3} B.S. and I.S. were found to be neglected as to Mother on March 3, 2015.

         {¶4} A case plan was adopted and Mother was required to, e.g., complete parenting classes; to obtain a psychological evaluation; to complete a domestic violence assessment; and to complete individual counseling and maintain housing and employment.

         {¶5} During a trauma assessment of I.S., Mother admitted she had "no bond" with I.S. because an ultrasound during her pregnancy indicated I.S. was a boy but she was in fact a girl. Mother admitted she found it difficult to bond with a girl and that it was difficult for her to care for three children, citing time spent in the hospital with John Doe, which took her away from I.S., who was three years old when John Doe was born.

         {¶6} The assessor noted Mother had problems processing what she learned in the parenting classes. When asked what ideas she took away from the parenting classes, Mother could not explain strategies to be a better caregiver of her children.

         {¶7} The Agency's visitation coordinator testified about interaction with Mother at visitation. Mother had limited engagement with B.S. and I.S. during visitation, sometimes choosing to color by herself. Mother did not intervene in the children's unruly behavior, remaining seated and simply telling the children to stop. Mother sometimes called the visitation coordinator back into the room to report that the children were not listening to her. At least one visit with Mother was disruptive to the extent that the children left the room and ran down the hall, and destroyed Agency property. The visits were described over time as progressively worse.

         {¶8} Mother's psychological evaluation indicated she is at risk for physical abuse and neglect of her children, concluding that her visitation should be limited and supervised. The evaluator noted that Mother's lowered borderline intellectual capacity makes it difficult for her to complete a case plan and the prognosis for positive change is poor. (The trial court did note that at the time of the evidentiary hearing this evaluation was two years and one month old, and such results are considered valid for two years.)

         {¶9} The children were found to be negatively impacted by interaction with Mother and Father. Mother was described as indifferent toward the children.

         {¶10} I.S.' trauma assessment indicated she experienced increased behavioral issues when she visited with Mother but those issues dissipated almost immediately when visitation was suspended. I.S. exhibited anxiety surrounding visitation with Mother, exacerbated by Mother's vacillation between ignoring I.S. and expressing frustration toward her.

         {¶11} B.S. exhibited behavioral issues and was also assessed for trauma. It was determined that he has been a victim of and a witness to domestic violence perpetrated by Father and Mother. B.S. stated he does not feel safe with Mother and Father. Mother acknowledged that she may have slapped B.S. to a caseworker.

         {¶12} The family's ongoing caseworker acknowledged Mother completed her case plan services, but the caseworker opined there was no reduction in risk to the children. The caseworker discussed this conclusion with Mother in June 2017 and was met with defiance, denial, and confusion. Mother never expressed any concern about I.S. and B.S. or asked how they were doing. The caseworker agreed with other witnesses that Mother did not engage with the children during visitation and did not have positive interaction with them.

         {¶13} Ultimately, the caseworker acknowledged both parents worked hard toward completing their case plans but did not prove themselves capable of retaining what they were taught. She saw no increase in positive interaction between Mother, I.S., and B.S. during the course of the case plan.

         {¶14} At the time of the evidentiary hearing, the Agency had maintained temporary custody of I.S. and B.S. for 32 months, and Mother had not visited the children for 16 months of that time period.

         {¶15} I.S. and B.S. were in the temporary custody of the Agency and placed with the same foster family for 21 months when the Agency moved for permanent custody of both siblings on September 15, 2016. The basis of the motion for permanent custody was the fact that the children were in the custody of the Agency for more than 12 months of a consecutive 22-month period.

         {¶16} An evidentiary hearing was held in late June, 2017. On September 22, 2017, the trial court awarded permanent custody of B.S. and I.S. to the Agency.

         {¶17} Mother now appeals from the trial court's decision granting permanent custody of I.S. and B.S. to the Agency.

         {¶18} Mother raises two assignments of error:

         ASSIGNMENTS OF ERROR

         {¶19} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING INTO EVIDENCE A VIDEOTAPE PURPORTED TO DEPICT A TYPICAL VISIT IN CONTRAVENTION OF RULE 403 OF THE OHIO RULES OF EVIDENCE AND WITHOUT AUTHENTICATION PURSUANT TO RULE 901 OF THE OHIO RULES OF EVIDENCE."

         {¶20} "II. THE TRIAL COURT'S JUDGMENT THAT IT WAS NOT IN THE BEST INTERESTS OF THE MINOR CHILDREN TO BE PLACED WITH [MOTHER] WAS AGAINST THE MANIFEST WEIGHT AND ...


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