[Cite as In re C.B., 2013-Ohio-5040.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: JUDGES:
Hon. W. Scott Gwin, P.J.
C.B., JR., Hon. William B. Hoffman, J.
J.B., Hon. Craig R. Baldwin, J.
Z.B.,
Z.B., AND Case Nos. 2013AP070029,
B.B. 2013AP070031
NEGLECTED/DEPENDENT
CHILDREN OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court
of Common Pleas, Juvenile Division Case
No. 12 JN 00193
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 8, 2013
APPEARANCES:
For Appellant, Father For Appellee
JOHN A. GARTRELL DAVID HAVERFIELD
Assistant Public Defender Tuscarawas County Job & Family Service
153 N. Broadway 389 16th Street SW
New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663
For Appellant, Mother Guardian ad Litem
ADAM WILGUS KAREN DUMMEMUTH
401 Tuscarawas St. W. – Suite 200 349 East High Avenue
Canton, Ohio 44702 P.O. Box 494
New Philadelphia, Ohio 44663
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 2
Hoffman, J.
{¶1} In Tuscarawas App. No. 2012 AP 07 0029, Appellant Kathleen Butner
(“Mother”) appeals July 18, 2013 Findings of Fact/Judgment Entry entered by the
Tuscarawas County Court of Common Pleas, Juvenile Division, which terminated her
parental rights, privileges and responsibilities with respect to her minor children, C.B.,
J.B., Z.B., Zo.B., and B.B., and granted permanent custody of the children to Appellee
Tuscarawas County Job and Family Services. In Tuscarawas App. No. 2012 AP 07
0031, Appellant Christopher Butner (“Father”) also appeals the July 18, 2013 Findings
of Fact/Judgment Entry entered by the Tuscarawas County Court of Common Pleas,
Juvenile Division, which terminated his parental rights, privileges and responsibilities
with respect to the aforementioned minor children, and granted permanent custody of
the children to Appellee.
STATEMENT OF THE FACTS AND CASE
{¶2} Mother and Father are the biological parents of C.B. (dob 2/25/99), J.B.
(dob 3/8/02), Z.B. (dob 9/19/04), Zo.B. (dob 8/1/07), and B.B. (dob 7/20/10). Mother and
Father are married and live together.
{¶3} On April 4, 2012, the trial court issued an ex-parte order placing the five
minor children in the protective custody of Appellee. Appellee filed a complaint on April
5, 2012, alleging the children were neglected and dependent, and seeking temporary
custody. The complaint was based upon the fact the children were not being educated;
had significant delays, developmentally and socially; and had varying medical
conditions which were not being adequately treated.
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 3
{¶4} The trial court conducted an adjudicatory hearing on May 2, 2012. The
trial court granted Appellee’s request to amend the complaint. Mother and Father
stipulated to the amended complaint, finding the children to be neglected and
dependent.
{¶5} Appellee filed a Motion to Modify Previous Dispositions on February 4,
2013. Therein, Appellee indicated it continued to have significant concerns regarding
the parents’ ability to parent the children based upon the progress made with case plan
services coupled with their psychological evaluations and resulting diagnoses. The trial
court conducted a hearing on the motion on June 6, 2013.
{¶6} Elizabeth Benedetto, the ongoing case manager assigned to the family,
testified Appellee received a report in March, 2012, regarding C.B., the oldest child,
being aggressive and threatening to stab himself. The report further indicated all five of
the children had medical problems and were home schooled. The girls, who were age 8
and 4 at the time, wore diapers and drank from baby bottles. Mother expressed
concerns regarding Father’s mental health, stating he had made comments about
suicide. Mother worried about how Father would care for the other children while she
was with C.B. at his appointments. Mother felt helpless, claiming she had no family
support. The family had an extensive history with Appellee.
{¶7} Benedetto stated the children were skinny, pale-skinned and had sunken
eyes when they arrived in custody. Mother and Father reported C.B. had ADHD; J.B.
had a seizure disorder and ADHD; Z.B. had a seizure disorder, had a feeding tube
which she would need her entire life, had been diagnosed with failure to thrive, had not
been expected to live past the age of three, had been diagnosed with Fragile X
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 4
syndrome, and had an abnormal ninth chromosome; and Zo.B. had a seizure disorder
and a brain tumor. Parents did not report any medical issues with the youngest child,
B.B. J.B., Z.B., and Zo.B. took seizure medication. J.B. also took prescription
medication for ADHD.
{¶8} Benedetto described the children’s educational status. Parents advised
Appellee the children were home schooled, using an online program. However, upon
further investigation, Appellee learned the children had not logged onto the program in
months and the school district was considering filing truancy charges. The children had
not had any type of schooling in two years. The school district had not approved the
home school program Parents were currently using or the program the family previously
utilized.
{¶9} After approximately two weeks in foster care, Z.B. and Zo.B. were
appropriately toilet trained and no longer drinking out of baby bottles. Z.B. did not need
or use the feeding tube once she was in foster care, and the device was removed in
July, 2012. Z.B. was not having any feeding issues. J.B., Z.B., and Zo.B. were taken
off the seizure medications. J.B. did continue to take a prescription medication for his
focus issues.
{¶10} With regard to the children’s education, Benedetto testified they are in
public school and have done “amazing”. The oldest two boys, C.B. and J.B. are excited
to be in school, interact well with their peers, and enjoy the camaraderie of the school
community. C.B. played on the 8th grade football team and was a team leader. His self-
esteem had greatly improved. J.B. has an accommodation plan to help with his
educational delays. His teachers reported consistent, daily progress. Since arriving in
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 5
foster care, the children have “blossomed”, they play, interact, and visit the library.
C.B., the oldest, struggled significantly with letting go of his control of his siblings. From
the time he was seven, C.B. was the family caretaker. C.B. is doing well and starting to
live like a “normal child”.
{¶11} Parents’ case plans required them to complete psychological evaluations
and follow with individual counseling. Father was also required to undergo a drug and
alcohol assessment. In addition, Parents’ were to maintain stable housing and
employment. Father admitted smoking “spice”, a synthetic marijuana. At the time of the
hearing, Father had finished the initial phase of his drug and alcohol screen, and was
working through the second phase. Parents had supervised visitation throughout the
pendency of the matter. They consistently visited the children. Benedetto had no
particular concerns relative to their interaction with the children. C.B. did not attend
visitation as such resulted in extreme stress for him. His foster parents and counselors
have encouraged him to see Parents. Occasionally, J.B. would forego seeing Parents,
which was also the result of extreme stress.
{¶12} Although Parents have done everything on their case plans, Benedetto
testified it was in the children’s best interest to be placed in the permanent custody of
Appellee. Benedetto raised concerns based upon Parents’ prior involvements with
Appellee as well with Stark County Children’s Services. She feared Parents would
revert back to their old ways as they had done in the past.
{¶13} C.B. and J.B. are in the same foster home, while the youngest three
children are together in another foster placement. Benedetto believed there was a very
good chance both placements would become permanent.
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 6
{¶14} Barbara Schwartz, a clinical therapist at the Chrysalis Counseling Center
in New Philadelphia, Ohio, testified she conducted the evaluations of Mother and
Father. Mother described an extremely traumatic childhood/young adulthood filled with
emotional and physical abuse. Mother reported she had been beaten, raped, confined,
starved, and shot. The traumas had been inflicted upon Mother by both her biological
parents and foster parents. Schwartz indicated Mother’s report struck her as unusual
as it was expansive and dramatic, yet Mother provided little detail. Mother also
informed Schwartz about the children’s numerous medical issues. Mother had an
irrational sense of the world as a terrifying place. After completing interviews and
studying the results of the psychological testing, Schwartz diagnosed Mother with
paranoid personality disorder, schizoid personality traits, and factious disorder, more
commonly known as Munchausen syndrome. Schwartz expressed concern regarding
the children being placed back in Mother’s care due to the high recidivism rate of
individuals with factious disorder. The safety of the children is the most important aspect
when treating individuals with this disorder.
{¶15} Schwartz diagnosed Father as having an adjustment disorder with anxiety
and dependent personality traits. Father did not present with any psychosis or
delusional thought disorders. Schwartz indicated Father was a hands-off parent.
Father’s long term prognosis was poor. Schwartz explained both Mother and Father
would have to change their patterns of interaction. Father’s deference to Mother
regarding the children’s medical treatments and educational decisions caused Schwartz
a great deal of concern.
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 7
{¶16} Via Findings of Fact/Judgment Entry filed July 18, 2013, the trial court
terminated Mother and Father’s parental rights, privileges, and responsibilities. The trial
court found the children could not and should not be placed with either parent within a
reasonable time, and it would be in the children’s best interest to grant permanent
custody to Appellee.
{¶17} It is from this judgment entry Mother appeals, assigning as error:
{¶18} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILDREN CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.
{¶19} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILDREN WOULD BE SERVED BY THE GRANTING
OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶20} Father appeals from the same entry, raising as error:
{¶21} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
PERMANENT CUSTODY TO JOB AND FAMILY SERVICES AS JOB AND FAMILY
SERVICES FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
THE CHILDREN COULD NOT BE PLACED WITH FATHER AND MOTHER IN A
REASONABLE AMOUNT OF TIME, AND THAT AN AWARD OF PERMANENT
CUSTODY WAS IN THE CHILDREN’S BEST INTEREST.”
{¶22} This case comes to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 8
MOTHER I, II
Father I
{¶23} Because Mother and Father’s assignments of error require identical
analysis, we shall address said assignments of error together. In her first assignment of
error, Mother maintains the trial court's finding the children could not be placed with her
within a reasonable time was against the manifest weight and sufficiency of the
evidence. In her second assignment of error, Mother contends the trial court's finding an
award of permanent custody was in the best interest of the children was against the
manifest weight and sufficiency of the evidence. In his sole assignment of error, Father
asserts the same challenges.
{¶24} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant,
competent and credible evidence upon which the fact finder could base its judgment.
Cross Truck v. Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments
supported by some competent, credible evidence going to all the essential elements of
the case will not be reversed as being against the manifest weight of the evidence. C.E.
Morris Co. v. Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶25} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 9
{¶26} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's parents; (b) the
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶27} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
the child as expressed directly by the child or through the child's guardian ad litem, with
due regard for the maturity of the child; (3) the custodial history of the child; and (4) the
child's need for a legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent custody.
{¶28} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 10
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶29} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should
not be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R .C. 2151.414(E)(1) through (16) exist with respect to each of
the child's parents.
{¶30} Parents argue they each complied with and completed their respective
case plans. Parents testified they had come to recognize the shortcomings in their
parenting methods through counseling, and both believed the counseling would enable
them to improve their parenting skills. Parents submit they maintained stable housing
as they lived at the same home for five years prior to Appellee’s involvement, and the
rent and utilities were timely paid.
{¶31} As set forth in our Statement of the Facts and Case, supra, Barbara
Schwartz diagnosed Mother with paranoid personality disorder, schizoid personality
traits, and factious disorder, more commonly known as Munchausen syndrome.
Schwartz expressed concerns about the children being returned to Parents’ home
because the likelihood Mother would revert to her old behaviors was high. Mother
needed to be accountable for her actions. Further, Schwartz feared Father, who has
dependent personality traits, could not be assertive with Mother regarding the children’s
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 11
medical care and educational needs. Schwartz believed it would be dangerous for the
children to be returned.
{¶32} With respect to the best interest finding, the evidence revealed, despite
the myriad of medical problems Parents claimed the children suffered, only one child
had an actual medical condition. The children were thriving in foster care. They were
physically healthy and emotionally stable. They enjoyed going to school and making
friends.
{¶33} Based upon the foregoing, we find the trial court's findings the children
could not be placed with Parents within a reasonable time, and an award of permanent
custody was in the best interest of the children were not against the manifest weight of
the evidence and were based upon sufficient evidence. Mother's first and second
assignments of error are overruled. Father’s sole assignment of error is overruled.
{¶34} The judgment of the Tuscarawas County Court of Common Pleas, Family
Court Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN
Tuscarawas County, Case Nos. 2013AP070029, 2013AP070031 12
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: :
:
C.B., JR., :
J.B., :
Z.B., :
Z.B., AND :
B.B. :
:
NEGLECTED/DEPENDENT :
CHILDREN :
: JUDGMENT ENTRY
:
: Case No. 2013AP070029
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas, Family Court Division, is affirmed. Costs
assessed to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: :
:
C.B., JR., :
J.B., :
Z.B., :
Z.B., AND :
B.B. :
:
NEGLECTED/DEPENDENT :
CHILDREN :
: JUDGMENT ENTRY
:
: Case No. 2013AP070031
For the reasons stated in our accompanying Opinion, the judgment of the
Tuscarawas County Court of Common Pleas, Family Court Division, is affirmed. Costs
assessed to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. CRAIG R. BALDWIN
In re C.B.
Combined Opinion