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In re M.B.

Court of Appeals of Ohio, Ninth District, Summit

August 7, 2019

IN RE: M.B. R.B. A.B.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 17-05-359 DN 17-05-360 DN 17-05-361

          DANIEL A. LEISTER, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          MOTHER, pro se, Appellee.

          SARAH HURLBURT, Attorney at Law, Guardian ad litem.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, JUDGE

         {¶1} Appellant Father appeals the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated the protective supervision of appellee Summit County Children Services Board ("CSB" or "the agency"), retained his three children in the legal custody of appellee Mother, and denied his motions for visitation and to modify the case plan. This Court reverses and remands.

         I.

         {¶2} Father and Mother are the biological parents of MB. (d.o.b. 1/22/04), R.B. (d.o.b. 4/22/05), and A.B. (d.o.b. 8/17/07), who were born during the course of the parents' marriage. In 2008, Mother and Father initiated divorce proceedings, which culminated in a judgment decree of divorce. In 2014, cases involving each of the children were filed in the Summit County Juvenile Court. As a result of those cases, the children resided with Mother, while Father enjoyed visitation with the children.

         {¶3} In 2017, CSB filed complaints alleging that the three children were abused and dependent based on allegations of sexual abuse by Father and the paternal grandmother, as well as other behavior by Father which caused fear and distress in the children. The agency immediately obtained an order that the children would remain in the legal custody of Mother under an order of protective supervision by CSB. Father was to have no contact with the children. After the shelter care hearing, the magistrate lifted the no contact order and allowed Father to have supervised visitation. Father filed a motion for temporary custody to CSB, with placement of the children in a foster home, based on his concerns that Mother was brainwashing the children and alienating them from him. Father also moved for a psychological evaluation of Mother and to transfer the children from their current counseling center to a counseling center Father identified as equipped to address issues related to divorce and parental manipulation. Shortly thereafter, Father filed a motion for legal custody and alleged that Mother and CSB were engaged in a conspiracy to alienate the children from Father.

         {¶4} After an adjudicatory hearing, the juvenile court found each child to be dependent pursuant to R.C. 2151.04(C). The trial court dismissed all allegations of abuse and the remaining allegations of dependency as to each child. After a dispositional hearing, the juvenile court maintained the children in Mother's legal custody and ordered CSB to provide protective supervision. Based in part on the recommendation of the guardian ad litem, the juvenile court suspended Father's visitation with the children. The agency's case plan was adopted as the order of the court.

         {¶5} CSB later filed a motion to terminate protective supervision but withdrew it a few months later based on Father's progress on his case plan objectives. Because the children's counselors reported that the children were not yet ready to visit with Father or engage in joint counseling with him, CSB moved for a first six-month extension of its protective supervision to allow time for additional progress. Father filed a motion for visitation, a reallocation of parental rights and responsibilities, and a modification of the case plan to address the issue of parental alienation by Mother over the past ten years. Father appended to his motion a report by a parental alienation expert who opined that all four factors indicative of parental alienation existed regarding M.B., R.B., and A.B. Father requested that the juvenile court address his motions at the hearing scheduled for May 22, 2018.

         {¶6} The record indicates that the parties appeared for a hearing on May 22, 2018. The juvenile court issued a judgment in which it merely continued the hearing to begin on July 30, 2018, without issuing any orders addressing Father's motions for visitation and a modification of the case plan to address the issue of parental alienation. Two months later, CSB filed a renewed motion to terminate its protective supervision.

         {¶7} At the beginning of the five-day hearing beginning on July 30, 2018, the juvenile court informed the parties that the only pending motions before it were CSB's written motion to terminate permanent custody and the parents' implicit motions for legal custody. When Father's attorney reminded the court that Father also had pending motions to modify the case plan and for visitation in the interim, the juvenile court asserted that it would only consider final dispositional motions, not any preliminary requests, because it planned to issue a final judgment fully disposing of the case after hearing the evidence. Father argued that, despite his frequent and repeated requests that CSB add an objective to the ...


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