In re K.B.

[Cite as In re K.B., 2010-Ohio-6083.]
STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN RE: )
)
K. B., )
ALLEGED DEPENDENT CHILD. )
) CASE NO. 10-BE-13
)
) OPINION
)
)

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division of Belmont
County, Ohio
Case No. 09JC386

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee No brief filed

For Appellant Attorney Richard J. Hura
Angela Burghy WPA Memorial Building
132 S. Broad St., Suite 204B
Canfield, Ohio 44406

JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro

Dated: December 10, 2010
[Cite as In re K.B., 2010-Ohio-6083.]
DONOFRIO, J.

{¶1} Appellant, Angela B., appeals from a Belmont County Common Pleas
Court, Juvenile Division decision terminating her parental rights and granting custody
of her son to appellee, the Belmont County Department of Job and Family Services.
{¶2} Appellant gave birth to K.B. on April 16, 2009. On April 24, 2009,
appellee filed a complaint asserting that K.B. was a dependent child. The complaint
alleged that while at the hospital giving birth, appellant admitted to using Vicodin and
tested positive for opiates. The complaint further stated that appellee had custody of
appellant’s daughter and had filed for permanent custody in that case because
appellant had not corrected the concerns raised in her case plan and her home still
had no working water. Appellant agreed to emergency shelter care.
{¶3} On July 15, 2009, the trial court held an adjudication hearing at which
appellant stipulated to the allegations in the complaint. The court subsequently
adjudicated K.B. dependent and granted temporary custody to appellee.
{¶4} On January 15, 2010, appellee filed a motion for permanent custody of
K.B. It alleged that appellant had not completed her case plan objectives and K.B.
could not or should not be placed with appellant within a reasonable period of time. It
also noted that K.B.’s father wished to permanently surrender his rights.
{¶5} The court held a hearing on the custody motion where it heard from
numerous witnesses, including appellant. The court found that it was in K.B.’s best
interest that it grant permanent custody to appellee. Specifically, it found that there
was a lack of interaction and relationship between K.B. and appellant, K.B. was in
need of a legally secure permanent placement and appellant could not and should
not be able to provide such placement, and appellant had her parental rights
involuntarily terminated with respect to K.B.’s sibling. Additionally, the court found by
clear and convincing evidence that K.B. could not be placed with appellant within a
reasonable time or should not be placed with appellant. The court also made a
finding that K.B.’s father permanently surrendered his rights in February 2010.
{¶6} Appellant filed a timely notice of appeal on May 26, 2010.
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{¶7} Appellant’s counsel has filed a no merit brief and request to withdraw as
counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203. In Toney, this court
set out the procedure to be used when appointed counsel finds that an indigent
criminal defendant’s appeal is frivolous. This court recently held that the Toney
procedure also applies in cases where appointed counsel seeks to withdraw in a
parental rights case. In re K.B., 7th Dist. No. 09-BE-24, 2010-Ohio-1015.
{¶8} The Toney procedure is as follows:
{¶9} “3. Where a court-appointed counsel, with long and extensive
experience in criminal practice, concludes that the indigent's appeal is frivolous and
that there is no assignment of error which could be arguably supported on appeal, he
should so advise the appointing court by brief and request that he be permitted to
withdraw as counsel of record.
{¶10} “4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses, pro se.
{¶11} “5. It is the duty of the Court of Appeals to fully examine the
proceedings in the trial court, the brief of appointed counsel, the arguments pro se of
the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶12} “ * * *
{¶13} “7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of
record should be allowed, and the judgment of the trial court should be affirmed.” Id.
at the syllabus.
{¶14} This court informed appellant that her counsel filed a Toney brief.
Appellant did not file a pro se brief.
{¶15} Although appellant’s counsel filed a Toney brief, he raised two potential
issues. Thus, we will incorporate these issues into our examination of the
proceedings. Counsel has asserted:
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{¶16} “THERE EXISTS CLEAR AND CONVINCING EVIDENCE TO
SUPPORT THE DECISION TO GRANT PERMANENT CUSTODY TO BELMONT
COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES.”
{¶17} “THE MANIFEST WEIGHT OF THE EVIDENCE SUPPORTS THE
TRIAL COURT’S FINDING.”
{¶18} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray (1990), 52 Ohio St.3d 155, 157, citing Stanley v. Illinois (1972),
405 U.S. 645, 651, 92 S.Ct. 1208. However, this right is not absolute. In re Sims, 7th
Dist. No. 02-JE-2, 2002-Ohio-3458, at ¶23. In order to protect a child's welfare, the
state may terminate parents' rights as a last resort. Id.
{¶19} We review a trial court's decision terminating parental rights and
responsibilities for an abuse of discretion. Sims, 7th Dist. No. 02-JE-2, at ¶36.
Abuse of discretion connotes more than an error of law or judgment; it implies that
the court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶20} The trial court may grant permanent custody of a child to the agency if
the court determines by clear and convincing evidence that it is in the child's best
interest to grant permanent custody to the agency and that 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. R.C. 2151.414(B)(1)(a). Clear and convincing
evidence is evidence that produces in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established. In re Adoption of Holcomb
(1985), 18 Ohio St.3d 361, 368.
{¶21} In determining whether it is in the child's best interest to grant custody
to the agency, the court shall consider:
{¶22} “(a) The interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
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{¶23} “(b) The wishes of the child, * * * with due regard for the maturity of the
child;
{¶24} “(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive twenty-two-
month period, * * *;
{¶25} “(d) 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 to the agency;
{¶26} “(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.” R.C. 2151.414(D)(1).
{¶27} One of the R.C. 2151.414(E)(7) to (11) factors applies here. R.C.
2151.414(E)(11) states: “The parent has had parental rights involuntarily terminated
* * * with respect to a sibling of the child.”
{¶28} The evidence supports the trial court’s grant of permanent custody to
appellee. Numerous witnesses testified as follows.
{¶29} Arbita Lal was appellant’s therapist at North Point, a community mental
health center. Appellee had referred appellant to North Point for drug and alcohol
and mental health assessments. (Tr. 17). Lal stated that appellant failed to complete
either portion. (Tr. 17). Lal testified that appellant had ten therapy sessions
scheduled between July 2009 and January 2010, but she only attended one. (Tr.
12). Appellant cancelled seven appointments and simply failed to show for two
others. (Tr. 13). Consequently, Lal told appellant that she could not continue as a
client because of appellant’s noncompliance with treatment. (Tr. 13). Lal also stated
that appellant had nine scheduled appointments with a doctor at North Point. (Tr. 13-
14). Of those nine doctor’s appointments, appellant attended three, canceled three,
no-showed for one, and the doctor cancelled one. (Tr. 14). Lal stated that
appellant’s reasons for her cancellations were mostly for lack of transportation or
illness. (Tr. 16). Lal testified this was despite appellant being offered transportation
 -5-

services from North Point. (Tr. 16). Finally, Lal testified that appellant told her that
she had not been taking her psychotropic medication from August through November
2009. (Tr. 31).
{¶30} Sarah Day is a counselor who conducts the 12-week parenting program
that appellant was required to complete as part of her case plan. Day stated that the
classes are held once a week. (Tr. 35). She testified that appellant attended her first
parenting class in March 2009. (Tr. 35). Appellant then attended three other classes
for a total of four, the most recent one having been in July 2009. (Tr. 35). Day stated
that appellant called and cancelled 17 times and no-showed three times. (Tr. 36).
Because appellant exceeded the amount of no-shows permitted, Day suspended her
from the program. (Tr. 36-37). Most of the cancellations, Day stated, were due to
transportation issues. (Tr. 39).
{¶31} Janice Gearhart is appellant’s acquaintance. She testified that
appellant dated a family member of hers, Monique, in 2009 and during that time
appellant stayed at her house approximately six nights a week. (Tr. 45-46).
Gearhart additionally testified that appellant helped with her children while she was
there and that she did not have any concerns about appellant using drugs or alcohol
in her home. (Tr. 46-48). Gearhart opined that appellant would be a wonderful
mother if she treated her own children the way she treated Gearhart’s children. (Tr.
48). Gearhart did state that after appellant and Monique broke up, appellant called
her house and threatened her. (Tr. 49). However, she stated that appellant had
since apologized. (Tr. 54-55).
{¶32} Monique testified that appellant drinks “every now and then” and that
appellant used drugs at times to control her back pain. (Tr. 61).
{¶33} April B., is appellant’s sister. She accompanied appellant to many
visits with K.B. (Tr. 72). During the visits, April observed appellant feed K.B., change
his diapers, and play games with him. (Tr. 71). She also saw appellant give K.B. a
hug or kiss at the end of each visit. (Tr. 85). Additionally, April testified that she and
appellant own a house together that they inherited from their mother. (Tr. 73). She
 -6-

stated that all of the utilities are in working order, although she stated that at one
point the water was not working due to a broken pipe. (Tr. 74). In regard to
appellant’s mental health, April testified that appellant is supposed to take medication
for bipolar disorder. (Tr. 76). She stated that she has concerns for appellant
because she “flips out about something” occasionally and it takes her a while to calm
down. (Tr. 76). April also testified that appellant took Vicodin for her back pain
during her pregnancy. (Tr. 93-94).
{¶34} Judy Beckett is a social service aide who supervised some of
appellant’s visits with K.B. and also provided her with transportation to some visits.
Beckett testified about appellant’s attendance. She stated that on one occasion
appellant cancelled her visit because she had a fight with her sister. (Tr. 111).
Beckett also testified that she had been helping appellant with transportation starting
in April 2010. (Tr. 112). But she further testified that transportation help would have
been available to appellant at any time prior to that if appellant had simply asked for
it. (Tr. 112). Additionally, Beckett expressed some concerns about things she
observed during appellant’s visits. She stated that appellant only has two hours with
K.B., yet she uses her cell phone frequently during that time. (Tr. 113). And during
one visit, K.B. began to choke and appellant simply shouted from across the room for
him to raise his arms up. (Tr. 114). Beckett also testified that appellant relies on April
during her visits to help her with K.B. (Tr. 115-16). And she stated that April actually
interacts more with K.B. than appellant does. (Tr. 122-23). Other than the choking
episode, however, Beckett testified that she has never observed appellant behave
inappropriately with K.B. (Tr. 129). And she stated that appellant always hugs and
kisses K.B. at the end of a visit. (Tr. 129).
{¶35} April Hanke is appellant’s good friend. Hanke testified that she allows
appellant to babysit her three children and that appellant feeds them, bathes them,
and helps them with homework. (Tr. 138-39). Hanke also stated that appellant
stayed with her “off and on” from January 2009 through April 2009. (Tr. 139). And
she stated that appellant took Vicodin for her back pain during that time. (Tr. 145).
 -7-

{¶36} Jamie Cohen-Pickens is appellant’s case manager. Cohen-Pickens
testified that appellee became involved with K.B. at the time of his birth because
appellant tested positive for Vicodin at the hospital and K.B. was drug exposed. (Tr.
148). She stated that K.B. was having some withdrawal issues. (Tr. 148). Cohen-
Pickens further explained that at the time of K.B.’s birth, appellee had an open case
with appellant regarding her daughter and K.B. was added to the existing case plan.
(Tr. 149). As to K.B., she stated that appellant’s case plan included establishing a
residence, having a psychological evaluation done, following the guidelines of the
psychologist, going to counseling, taking her medication, drug and alcohol
evaluation, and parenting classes. (Tr. 150-51). Cohen-Pickens testified that the
only part of her case plan that appellant completed was getting the water lines fixed
at her residence. (Tr. 150). She stated that this non-compliance with the case plan
had been ongoing for two years. (Tr. 151). Cohen-Pickens did testify that she had
been to appellant’s residence in February 2010, and the home was adequate. (Tr.
153). Cohen-Pickens next testified that appellant had completed parenting classes in
West Virginia after the state took custody of that child. (Tr. 155-56).
{¶37} Cohen-Pickens further testified that she discussed transportation many
times with appellant dating back to the previous summer. (Tr. 159). And she stated
that appellee makes every effort to transport people when requested. (Tr. 160). Of
the 99 scheduled visits with K.B., Cohen-Pickens stated that appellant attended only
37. (Tr. 161). Appellant canceled or failed to show up 56 times and the agency
cancelled six times. (Tr. 162).
{¶38} As to K.B.’s sister, Cohen-Pickens testified that the court granted
permanent custody to appellee and that decision was upheld on appeal. (Tr. 171).
She stated that since that time, appellant’s motivation to work on her case plan
declined. (Tr. 171). And she stated that in his foster placement, K.B. visits with his
sister. (Tr. 172).
{¶39} Finally, Cohen-Pickens testified that K.B. is in a foster-to-adopt home
and his foster parents would love to adopt him. (Tr. 172). She stated that K.B. is
 -8-

bonded with his foster family. (Tr. 172). And she opined that K.B. needs a legally
secure placement, that returning him to appellant would not be a legally secure
placement, and that granting his permanent custody to appellee would be in his best
interest. (Tr. 173).
{¶40} Shannon Van Horn is appellant’s neighbor. Van Horn testified that
appellant has babysat for her seven-year old daughter since she was an infant. (Tr.
197). From August 2009 until October 2009, Van Horn stated that appellant stayed
three to four days a week at her house. (Tr. 198). Van Horn also testified that
appellant gets sick a lot. (Tr. 202). She further testified that there were many times
when appellant would be waiting for a friend to pick her up to take her to visitation but
then the friend would back out. (Tr. 204). She testified that appellant was upset
whenever she could not get to a visit. (Tr. 206). And she stated that appellant was
excited whenever she got to see K.B. (Tr. 206-207). Finally, Van Horn opined that
appellant’s home is suitable for a child and that appellant would be capable to raise
K.B. (Tr. 209).
{¶41} Brent Clyburn is K.B.’s guardian ad litem. Clyburn opined that K.B. was
in need of a legally secure placement. (Tr. 216). He further opined that appellant
could not provide such a placement at this time but that a grant of permanent custody
to appellee would ensure such a placement. (Tr. 216-17). Clyburn additionally
expressed his belief that a grant of permanent custody to appellee was in K.B.’s best
interest. (Tr. 217).
{¶42} Clyburn also testified that on March 17, 2010, he did a surprise visit at
appellant’s house to see if she was residing there. (Tr. 218). He stated that
appellant was home and the house was “livable.” (Tr. 218-19). At the time, Clyburn
instructed appellant to contact him after some remodeling work was completed to
arrange a home inspection. (Tr. 221). However, appellant never called. (Tr. 221).
{¶43} Finally, Clyburn testified that the visits he observed between appellant
and K.B. were appropriate. (Tr. 225-26).
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{¶44} Appellant was the last witness to testify. Appellant admitted that she
did not complete her parenting classes. (Tr. 231). She blamed this on illness and
lack of transportation. (Tr. 231). She further admitted to her poor attendance at
counseling, which she again blamed on illness and lack of transportation. (Tr. 233).
Appellant testified that she suffers from chronic bronchitis. (Tr. 234). She further
testified that a case manager, whose name she could not remember, had told her
that there was no transportation available to her all the way to her house. (Tr. 237).
However, she also testified that although transportation was available to her, she did
not understand this until March 2010. (Tr. 241). And she testified that she never
asked if appellee could help her with transportation. (Tr. 242). Appellant stated that
if she had known appellee would have provided her with transportation, she would
have taken advantage of it. (Tr. 243).
{¶45} On cross-examination, appellant stated that there was no reason why
she never got a driver’s license. (Tr. 266). She simply stated that she could not
afford a car, so there was no reason to get a driver’s license. (Tr. 267). When asked
why she has not been saving her money to buy a car, appellant stated that she did
not have enough money to save after she pays the bills and buys “my cigarettes, my
necessities.” (Tr. 273).
{¶46} As to her medication, appellant stated that she takes a medication for
her bipolar disorder. (Tr. 238). Appellant testified that since K.B.’s birth, there were
times when she did not take her bipolar medication because she could not get to her
doctor’s appointments to get the refills. (Tr. 239). On one occasion, she went three
to four months without taking her bipolar medication. (Tr. 240). Appellant further
testified that although she does not presently take any medicine for her back pain,
she did take Vicodin in the past. (Tr. 238). She stated that her doctors were okay
with her taking Vicodin while she was pregnant. (Tr. 262).
{¶47} Appellant denied any drug or alcohol problems. She stated that she
occasionally has a few drinks, but that is all. (Tr. 241).
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{¶48} Appellant also testified about her visitation with K.B. She stated that
she enjoys her time with her son and that she has bonded with him. (Tr. 246). As to
her cell phone, appellant stated that she uses her cell phone to take pictures of K.B.
and sometimes has to spend time deleting old pictures. (Tr. 246). Appellant further
testified that she involves her sister April at the visits because she is K.B.’s family.
(Tr. 249). However, she denied that April has more interaction with K.B. than she
does. (Tr. 248-49). Appellant testified that she gets upset when her visits are over
and feels that K.B. should be home with her. (Tr. 249-50).
{¶49} Additionally, appellant testified regarding her middle child, who was
born in West Virginia. She stated that she was court-ordered to take parenting
classes in West Virginia regarding that child. (Tr. 263). She stated that the court
granted her custody of her child. (Tr. 264). However, four to five months later, she
gave the child up for adoption. (Tr. 264). She stated that she did this for somebody
special who could not have a child of their own. (Tr. 266).
{¶50} One other witness should be noted. Karen Campbell is a psychologist
who evaluated appellant in January 2009. She appeared at the hearing ready to
testify. The court stated that it would take judicial notice of her testimony given in a
hearing involving K.B.’s sister. However, a court may not take judicial notice of prior
proceedings before the court in another case, even when they involve the same
parties and same judge. In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, at ¶14.
Any error by the court in taking judicial notice here was waived, however. Appellee
requested the court to take judicial notice of Campbell’s testimony and some
additional testimony by Lal. (Tr. 8-9, 17-18). Appellant’s counsel specifically stated
that he had no objection to this. (Tr. 8-9, 17-18). Furthermore, as will next be
discussed, the testimony given by the witnesses that we set out above clearly
supports the trial court’s judgment.
{¶51} The testimony supports the trial court’s findings that it is in K.B.'s best
interest to grant permanent custody to appellee and that K.B. cannot be placed with
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either of his parents within a reasonable time or should not be placed with his
parents.
{¶52} The applicable statutory best interest factors support the court’s
determination.
{¶53} First, K.B. has bonded with his foster parents who want to adopt him.
And his foster parents bring him to visit with his biological sister, who is not in
appellant’s custody. Appellant testified that she too has bonded with K.B. However,
it is uncertain how much she could have bonded with him considering she only
attended 37 out of 99 visits, amounting to less than once a week for a year.
{¶54} Second, at the time of the hearing, K.B. had been in appellee’s
temporary custody for just two days shy of 12 consecutive months, since his birth.
{¶55} Third, both appellant’s caseworker and K.B.’s guardian ad litem testified
that K.B. is in need of a legally secure placement. Additionally, both opined that
returning K.B. to appellant would not be a legally secure placement.
{¶56} Finally, appellant has already had her parental rights involuntarily
terminated with respect to K.B.’s sister.
{¶57} In addition to these statutory factors, other evidence further supports
the trial court’s determination. For instance, appellant attended only one of ten
scheduled counseling appointments, four out of 12 parenting classes, and 37 of 99
visits with K.B. Appellant’s poor attendance caused her counselor to cancel her as a
client and the parenting class instructor to dismiss her from the class. For her poor
attendance, appellant always cited lack of transportation or illness. However,
appellant failed to take advantage of transportation offered by North Point and never
asked her caseworker if appellee could help her with transportation. Further,
appellant had no excuse for not obtaining a driver’s license. And she prioritized
buying cigarettes higher than saving money for a car. Additionally, appellant
voluntarily gave up custody of her middle child. Finally, both appellant’s caseworker
and K.B.’s guardian ad litem opined that it was in K.B.’s best interest that the court
grant his permanent custody to appellee.
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{¶58} Furthermore, the evidence demonstrated that K.B. cannot be placed
with either of his parents within a reasonable time or should not be placed with his
parents. Firstly, K.B.’s father surrendered his parental rights. So K.B. cannot be
placed with him. Secondly, the testimony from appellant’s counselors, case manager
and K.B.’s guardian ad litem painted a picture of a young child who needs a
permanent placement and a mother with numerous psychological, medical and
transportation issues who showed no real sign of being able to address these issues
in order to provide a secure home for her child in a reasonable time.
{¶59} Based on all of these factors, we cannot conclude that the trial court
abused its discretion in granting permanent custody of K.B. to appellee.
{¶60} For the reasons stated above, the trial court’s judgment is hereby
affirmed and counsel’s motion to withdraw is granted.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.