In re R.B.

[Cite as In re R.B., 2022-Ohio-1705.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: :

R.B., et al. : CASE NO. CA2022-01-003
. CA2022-01-004
:
OPINION
: 5/23/2022

:

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JN2018-0089; JN2018-0090

Sebaly Shillito & Dyer, and Brian A. Muenchenbach and Meghan E. Richmond, for
appellant.

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.

Legal Aid Society of Southwest Ohio, LLC, and Jonathan W. Ford and Emily Edwards,
guardian ad litem.

S. POWELL, J.

{¶ 1} Appellant ("Mother") appeals from the decision of the Butler County Court of

Common Pleas, Juvenile Division, granting permanent custody of her two children, R.B.
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and B.C., to appellee, Butler County Department of Job and Family Services ("BCDJFS").

For the reasons outlined below, we affirm the juvenile court's decision.

The Parties

{¶ 2} Mother is the biological mother of the two children at issue in this case, boys,

R.B., born September 24, 2009, and B.C., born August 25, 2014. Neither R.B.'s father nor

B.C.'s father are parties to this appeal.

Facts and Procedural History

{¶ 3} On March 13, 2018, BCDJFS filed separate complaints alleging both R.B. and

B.C. were abused and dependent children. The record indicates BCDJFS filed these two

complaints after it received a referral alleging R.B. and B.C. had been sexually abused and

the victims of sex trafficking by Mother and her then boyfriend, J.H. This includes instances

where it was alleged the then eight-year-old R.B. was forced to have vaginal and anal

intercourse with his 11-year-old cousin. This is in addition to BCDJFS alleging Mother had

admittedly used several illegal substances while R.B. and B.C. were in her care, including

methamphetamine, heroin, and marijuana, and that an officer with the Middletown Police

Department had discovered a text message from B.C.'s father threatening to kill R.B. The

record indicates Mother also admitted to having significant mental health issues that had

resulted in Mother attempting suicide on more than one occasion.

{¶ 4} On July 2, 2018, the juvenile court adjudicated both R.B. and B.C. as

dependent children. That same day, the juvenile court held dispositional hearings for R.B.

and B.C. Once those dispositional hearings concluded, the juvenile court issued two

dispositional decisions granting temporary custody of R.B. and B.C. to BCDJFS. There is

no dispute that, despite the 90-day time requirement set forth in the now former R.C.

2151.35(B)(1), more than 90 days had passed between when BCDJFS filed its complaints

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alleging R.B. and B.C. were abused and dependent children and when the juvenile court

held its dispositional hearings for R.B. and B.C.1 There is also no dispute that Mother did

not object to the juvenile court holding its dispositional hearings for R.B. and B.C. outside

of that 90-day timeframe. There is further no dispute that neither Mother, nor either R.B.'s

or B.C.'s fathers, appealed from the juvenile court's dispositional decisions granting

temporary custody of R.B. and B.C. to BCDJFS.

{¶ 5} On January 23, 2020, BCDJFS filed motions for permanent custody of both

R.B. and B.C. In its motions for permanent custody, BCDJFS noted that R.B. and B.C. had

at that point been in its temporary custody for 12 or more months of a consecutive 22-month

period. After BCDJFS filed its motions for permanent custody, a three-day hearing on

BCDJFS' motions was held before a juvenile court magistrate. This three-day hearing

ultimately concluded on February 3, 2021. On the second day of that three-day hearing,

which was held on October 6, 2020, Mother orally moved the magistrate to dismiss the

abuse and dependency complaints DCDJES had filed with the juvenile court on March 13,

2018. To support her motion, Mother argued the juvenile court lacked subject-matter

jurisdiction to proceed once it failed to hold its dispositional hearings for R.B. and B.C. within

the 90-day time limit set forth by former R.C. 2151.35(B)(1). Upon hearing arguments from

both parties, the magistrate denied Mother's motion from the bench.

{¶ 6} On March 15, 2021, Mother filed two written motions requesting the juvenile

court dismiss the March 13, 2018 complaints regarding R.B. and B.C. To support these

motions, Mother set forth the same arguments she had previously raised to the magistrate

in support of her October 6 oral motion to dismiss, i.e., the juvenile court lacked subject-

1. Based on this court's calculations, there were 111 days that elapsed between March 13, 2018 and July 2,
2018.
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matter jurisdiction to proceed once it failed to hold its dispositional hearings for R.B. and

B.C. within the 90-day time limit set forth by former R.C. 2151.35(B)(1). Approximately

three weeks later, on April 5, 2021, the magistrate issued two separate orders denying

Mother's motions to dismiss in both R.B.'s and B.C.'s cases. In so holding, the magistrate

found there was at that time no case law supporting Mother's claim that the juvenile court's

failure to abide by the 90-day limit set forth in former R.C. 2151.35(B)(1) "can act to deprive

a court of subject matter jurisdiction." The magistrate also determined that there was

nothing at that time indicating "the time limits in Section 2151.3 et seq. are jurisdictional in

nature."

{¶ 7} On April 18, 2021, Mother filed motions requesting the juvenile court "set

aside" the magistrate's decisions denying her motions to dismiss R.B.'s and B.C.'s cases.

The next day, April 19, 2021, the magistrate issued separate decisions recommending the

juvenile court grant BCDJFS' motions for permanent custody of R.B. and B.C. In reaching

these decisions, the magistrate noted that Mother had abandoned both R.B. and B.C. given

her lack of any contact with either child for more than a year after they were removed from

her care. The magistrate also noted within its decisions that both R.B. and B.C. had a "solid

nurturing relationship with [their] foster parents" and that R.B.'s and B.C.'s foster parents

were interested in adoption if permanent custody was granted to BCDJFS. The magistrate

also stated within each of its decisions, the following:

In conclusion, it is clear that mother had an extremely difficult
and abusive childhood. It appears that her history followed her
as she attempted to be a mother for [R.B. and B.C.]. She clearly
loves [both R.B. and B.C.], but her personal issues, such as
substance abuse and mental health, prevented her from putting
that love into appropriate action when [they were] in her care.
As a result, [R.B. and B.C. were] where [they were]; physically,
emotionally, and mentally, when [they were] removed from her
care.

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Mother has made strides towards becoming healthy and
independent. What she has done so far in that regard has not
been easy and she appears to be turning her life around. * * * In
terms of her relationship with [R.B. and B.C.], however, the
damage has been done. Her absence in [their lives] for over a
year after [they were] removed from her care only served to
exacerbate that damage.

{¶ 8} On May 3, 2021, Mother filed objections to the magistrate's decisions in both

R.B.'s and B.C.'s cases. Mother later supplemented her objections to the magistrate's

decisions on July 22, 2021. As part of her objections, Mother alleged the juvenile court

lacked subject-matter jurisdiction and/or the legal authority to grant permanent custody of

R.B. and B.C. to BCDJFS "because it failed to dispose of the case[s] within 90 days of filing

* * *." The juvenile court issued decisions overruling Mother's objections to both of the

magistrate's decisions on November 23, 2021. The juvenile court also denied Mother's

motions requesting the juvenile court "set aside" the magistrate's decisions denying her

motions to dismiss. The following month, on December 20, 2021, Mother filed timely notices

of appeal from both juvenile court's decisions overruling her objections to the magistrate's

decisions in R.B.'s and B.C.'s cases. Mother raises three assignments of error for review.

Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT LACKED JURISDICTION TO TERMINATE

APPELLANT'S PARENTAL RIGHTS.

{¶ 10} In her first assignment of error, Mother argues the juvenile court erred by

denying her motion to dismiss, alleging the juvenile court lacked subject-matter jurisdiction

to proceed once the juvenile court failed to hold the required dispositional hearings for R.B.

and B.C. within the 90-day time limit set forth in the now former R.C. 2151.35(B)(1). We

disagree.

{¶ 11} "Former R.C. 2151.35(B)(1) affects a juvenile court's authority over a

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particular case." In re H.M.M., 1st Dist. Hamilton No. C-210590, 2022-Ohio-473, ¶ 16.

Pursuant to that statute:

If the court at an adjudicatory hearing determines that a child is
an abused, neglected, or dependent child, the court shall not
issue a dispositional order until after the court holds a separate
dispositional hearing. The court may hold the dispositional
hearing for an adjudicated abused, neglected, or dependent
child immediately after the adjudicatory hearing if all parties
were served prior to the adjudicatory hearing with all documents
required for the dispositional hearing. The dispositional hearing
may not be held more than thirty days after the adjudicatory
hearing is held. The court, upon the request of any party or the
guardian ad litem of the child, may continue a dispositional
hearing for a reasonable time not to exceed the time limits set
forth in this division to enable a party to obtain or consult
counsel. The dispositional hearing shall not be held more than
ninety days after the date on which the complaint in the case
was filed.

If the dispositional hearing is not held within the period of time
required by this division, the court, on its own motion or the
motion of any party or the guardian ad litem of the child, shall
dismiss the complaint without prejudice.2

{¶ 12} The Ohio Supreme Court was recently tasked with determining whether that

90-day time limit set forth in the now former R.C. 2151.35(B)(1) was mandatory or merely

discretionary. In re K.M., 159 Ohio St.3d 544, 2020-Ohio-995. Upon review, the Ohio

Supreme Court determined that the 90-day time limit was mandatory, not discretionary,

given the statutory language contained an "express limitation on a juvenile court's authority

for failure to comply with a statutory deadline." Id. at ¶ 23. In so holding, the Ohio Supreme

Court noted that "[i]f the General Assembly had intended for a juvenile court to proceed with

dispositional determinations beyond the 90-day time limit in R.C. 2151.35(B)(1), it could

have added language to that effect." Id. at ¶ 24. Therefore, because former R.C.

2. We note that, effective April 12, 2021, the statutory language found in R.C. 2151.35(B)(1) was amended
"to allow the juvenile court under certain circumstances an additional 45 days beyond the current 90-day limit
in which to hold the dispositional hearing before the complaint must be dismissed without prejudice." In re
K.R., 9th Dist. Summit No. 29815, 2021-Ohio-495, ¶ 12, fn. 2.
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2151.35(B)(1) did not contain any such language that would allow the juvenile court to act

beyond the 90-day time limit, the Ohio Supreme Court determined that "we must apply the

express mandate in R.C. 2151.35(B)(1) requiring dismissal of the complaints." Id. at ¶ 25.

The Ohio Supreme Court also determined that, because the statutory language is "explicit"

in requiring dismissal after the expiration of the 90-day time limit, "there can be no implicit

waiver of the 90-day limit." Id. at ¶ 26.

{¶ 13} Following the Ohio Supreme Court's decision in In re K.M., this court decided

a case where a father argued the juvenile court erred by failing to dismiss complaints

alleging three children were abused, neglected, or dependent children given the juvenile

court's failure to hold dispositional hearings for any of the three children within the 90-day

time limit set forth in former R.C. 2151.35(B)(1).3 In re K.K., 12th Dist. Butler Nos. CA2020-

12-130, CA2021-01-002, and CA2021-01-003, 2021-Ohio-1689, ¶ 7. Applying the Ohio

Supreme Court's holding in In re K.M., 2020-Ohio-995, this court agreed and found "the

juvenile court erred by not dismissing the complaints without prejudice once it failed to hold

the dispositional hearings [for the three children at issue] within 90 days as required by R.C.

2151.35(B)(1)." Id. at ¶ 21. In so holding, this court noted that the Ohio Supreme Court's

3. The Ohio Supreme Court has accepted for review this court's decision in In re K.K., 2021-Ohio-1689. See
In re K.K., 164 Ohio St.3d 1440, 2021-Ohio-3233. The two issues accepted for review by the Ohio Supreme
Court are:

1. The language requiring dismissal for violations of the 90-day time limit set
forth in R.C. 2151.35(B)(1) is not self-executing since it requires the filing of
a motion by the court, by the parties to the case, or by the child's guardian
ad litem. As such, the 90-day time limit is not jurisdictional.

2. The decision of the Twelfth District Court of Appeals in In re: K.K., 12th
Dist. Butler Nos. CA2020-12-130, CA2021-01-002, & CA2021-10-003, 2021-
Ohio-1689, cannot be applied retroactively to a permanency case that has
resulted in a final, appealable order and is not pending on appeal.

Oral argument was held on the matter on March 30, 2022. See Ohio Supreme Court Case Information, Case
No. 2021-0822, available at https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2021/0822 (last
accessed May 3, 2022).
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decision in In re K.M.:

specifically states that a parent cannot implicitly waive the
juvenile court's requirement to hold the dispositional hearing
within 90 days of the filing of the complaint and that a juvenile
court must dismiss the complaint without prejudice should it fail
to hold the dispositional hearing within the 90-day time frame,
whether or not any party raises the issue.

Id. at ¶ 14.

{¶ 14} The facts in In re K.K. are nearly identical to the facts at issue here. In this

case, just like for the three children at issue in In re K.K., the juvenile court did not hold the

dispositional hearings for R.B. and B.C. within the 90-day time limit in former R.C.

2151.35(B)(1). Moreover, just like the mother and father in In re K.K., neither Mother nor

either R.B.'s or B.C.'s fathers in this case expressly waived that 90-day time limit. However,

although dealing with nearly identical facts, we believe In re K.K. incorrectly determined that

a juvenile court is divested of subject-matter jurisdiction to proceed when the juvenile court

does not hold the necessary dispositional hearing(s) within 90 days as required by former

R.C. 2151.35(B)(1). See id., 2021-Ohio-1689 at ¶ 20 (holding a challenge to the juvenile

court's authority to proceed after the juvenile court failed to hold a dispositional hearing

within 90 days as required by former R.C. 2151.35[B][1] can be raised at any time, even for

the first time on appeal, given the well-settled principle that "attacks on subject-matter

jurisdiction cannot be forfeited"). Therefore, for the reasons outlined below, and to the

extent that this court's decision in In re K.K., either expressly or implicitly, determined that

a juvenile court is divested of subject-matter jurisdiction to proceed when the juvenile court

does not hold the necessary dispositional hearing(s) within 90 days of the filing of a

complaint alleging that a child is abused, neglected, or dependent as required by the now

former R.C. 2151.35(B)(1), that part of our decision is overruled and will no longer be

followed by this court.

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{¶ 15} "Subject-matter jurisdiction of a court connotes the power to hear and decide

a case upon its merits." Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972). "Ohio's juvenile

courts are statutory courts, created by the General Assembly." In re Z.R., 144 Ohio St.3d

380, 2015-Ohio-3306, ¶ 14. Because of this, "[j]uvenile courts are courts of limited

jurisdiction whose powers are created solely by statute." In re S.M., 12th Dist. Madison No.

CA2009-02-008, 2009-Ohio-4677, ¶ 14, citing Carnes v. Kemp, 104 Ohio St.3d 629, 2004-

Ohio-7107, ¶ 25. "The termination of parental rights is statutory and governed by R.C.

2151.414." In re J.G., 8th Dist. Cuyahoga No. 110745, 2022-Ohio-827, ¶ 27. Thus,

because it is Ohio's juvenile courts that have the power to terminate an individual's parental

rights in accordance with R.C. 2151.414, and because the plain language of R.C.

2151.35(B)(1) only requires a juvenile court to dismiss the complaint without prejudice

should the juvenile court fail to hold a dispositional hearing within the required 90-day time

frame set forth within that statute, it was improper for this court to find a juvenile court is

divested of subject-matter jurisdiction to proceed when the juvenile court does not abide by

the requirements of former R.C. 2151.35(B)(1). To hold otherwise, as we did in In re K.K.,

ignores the plain language found in former R.C. 2151.35(B)(1), as well as the ultimate

outcome in Ohio Supreme Court's decision in In re K.M., 2020-Ohio-995, requiring a

juvenile court to dismiss a case without prejudice if the juvenile court fails to conduct a

dispositional hearing within 90 days of the filing of a complaint alleging that a child is

abused, neglected, or dependent.

{¶ 16} Our discussion of In re K.K. does not end there, however. This is because it

was also improper for this court to reject the state's argument alleging the doctrine of res

judicata applied given that no appeal was taken from the juvenile court's dispositional

decisions regarding the three children at issue in that case. Id. at ¶ 18-20. In so holding,

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we note that there are at least two Ohio appellate courts that have already found the

doctrine of res judicata should apply in circumstances such as these. We agree with both

of these Ohio appellate courts. This is because, as these other two Ohio appellate courts

have explained, any error the juvenile court made in proceeding on the dependency

complaint after the 90-day time limit expired rendered the juvenile courts' resulting decisions

voidable, not void. See In re G.T., 5th Dist. Richland No. 2021 CA 0066, 2022-Ohio-654, ¶

41, 43 ("Mother could have argued that the trial court violated R.C. 2151.35[B][1] in a direct

appeal from the court's June 6, 2019 dispositional order, but she did not timely appeal the

dispositional order. Thus, res judicata bars her from raising the issue in this appeal"); and

In re L.S., 4th Dist. Ross No. 20CA3719, 2020-Ohio-5516, ¶ 19, 21 ("[h]ere, the juvenile

court adjudicated L.S. a dependent child, and the court issued a R.C. 2151.353[A]

dispositional order on April 30, 2019. The parents could have raised the claim that the

juvenile court violated R.C. 2151.35[B][1] in a direct appeal from that order, but neither

parent timely appealed the dispositional order after the juvenile court overruled Mother's

objections to the magistrate's dispositional decision. * * * Thus, res judicata bars the parents

from raising the issue in this appeal, and we overrule the third assignment of error").

Therefore, to the extent that this court's decision in In re K.K., either expressly or implicitly,

determined that the doctrine of res judicata did not apply even though no appeal was taken

from the juvenile court's dispositional decisions, that part of our decision is also overruled

and will no longer be followed by this court.

{¶ 17} In reaching this decision, we note the generally well-established principle that

"'when a specific action is within a court's subject-matter jurisdiction, any error in the

exercise of that jurisdiction renders the court's judgment voidable, not void.'" In re R.R., 3d

Dist. Logan No. 8-20-26, 2021-Ohio-1620, ¶ 34, quoting State v. Harper, 160 Ohio St.3d

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480, 2020-Ohio-2913, ¶ 26; In re Settlement for Fischer, 5th Dist. Morgan No. 19AP0002,

2019-Ohio-4749, ¶ 13 ("judgments that are erroneous for other than jurisdictional reasons

are merely voidable"). "If a judgment entry is voidable, then it must be challenged on direct

appeal, or else principles of res judicata will apply * * *." State ex rel. Romine v. McIntosh,

162 Ohio St.3d 501, 2020-Ohio-6826, ¶ 12. This is because, "[r]es judicata prevents the

litigation of issues that were raised on appeal or could have been raised on appeal." In re

K.B., 10th Dist. Franklin No. 05AP-783, 2006-Ohio-3104, ¶ 8. Therefore, "'any issue that

could have been raised on direct appeal and was not is res judicata and not subject to

review in subsequent proceedings.'" In re Z.D., 9th Dist. Summit No. 24295, 2008-Ohio-

6436, ¶ 5, quoting State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-1245, ¶ 16.

{¶ 18} "'[F]inality requires that there be some end to every lawsuit, thus producing

certainty in the law and public confidence in the system's ability to resolve disputes.'"

Bowman v. Bowman, 12th Dist. Warren No. CA98-06-070, 1999 Ohio App. LEXIS 49, *11

(Jan. 11, 1999), quoting Strack v. Pelton, 70 Ohio St.3d 172, 175 (1994). "'Res judicata

promotes the principle of finality of judgments by requiring plaintiffs to present every

possible ground for relief in the first action.'" In re S.J., 9th Dist. Summit No. 23199, 2006-

Ohio-6381, ¶ 14, quoting Kirkhart v. Keiper, 101 Ohio St.3d 377, 2004-Ohio-1496, ¶ 5. "This

doctrine has been held to apply to appellate proceedings in both criminal and civil cases."

In re A.S., 3d Dist. Allen Nos. 1-12-01 and 1-12-02, 2012-Ohio-3197, ¶ 52. This includes

permanent cases regarding terminating of an individual's parental rights under R.C.

2151.414. See, e.g., In re J.D., 12th Dist. Fayette No. CA2017-02-002, 2017-Ohio-4229, ¶

17 (finding in a permanent custody case that "the children's dependency is res judicata and

Mother is barred from challenging those findings in the context of this appeal").

{¶ 19} "[A] dependency adjudication followed by a disposition awarding or continuing

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temporary custody of a child to a public services agency constitutes a final appealable

order." In re W.F., 12th Dist. Brown No. CA2014-01-002, 2014-Ohio-2892, ¶ 11, citing In

re Murray, 52 Ohio St.3d 155 (1990). This is, in fact, a well-established principle. In re

C.G., 12th Dist. Preble Nos. CA2007-03-005 and CA2007-03-006, 2007-Ohio-4361, ¶ 11

("[i]It is well-established that a dependency adjudication followed by a disposition awarding

or continuing temporary custody of a child to a public children services agency constitutes

a final appealable order"). Mother, therefore, could have, and possibly should have,

appealed from the juvenile court's dispositional decisions in this case arguing it was error

for the juvenile court to do anything other than journalize the dismissal of R.B.'s and B.C.'s

cases without prejudice given its failure to hold a dispositional hearing for either R.B. or

B.C. within the 90-day time limit set forth by the now former R.C. 2151.35(B)(1). See In re

H.M.M., 2022-Ohio-473 at ¶ 34 (after the 90-day deadline expires "a juvenile court has no

authority to issue further orders except to journalize the dismissal of the case without

prejudice"); and In re D.G., 1st Dist. Hamilton Nos. C-200359 and C-200371, 2021-Ohio-

429, ¶ 26 ("a juvenile court that force[s] the parties to continue litigating past the 90 day

dispositional deadline exceed[s] its statutory authority").

{¶ 20} This would certainly be true here had Mother raised this challenge to the

juvenile court prior to the juvenile court holding its dispositional hearings for R.B. and B.C.

on July 2, 2018, approximately three weeks after the 90-day dispositional deadline set forth

in R.C. 2151.35(B)(1) had already expired. Mother, however, did not raise this issue at any

time prior to or during R.B.'s and B.C.'s dispositional hearings. Mother also did not appeal

from the juvenile court's dispositional decisions regarding either R.B. or B.C. The same is

true as it relates to R.B.'s and B.C.'s fathers. Mother instead raised this challenge for the

first time over two years later during the second day of the three-day hearing held on

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BCDJFS' permanent custody motions. Therefore, because Mother could have, but did not,

appeal from the juvenile court's dispositional decisions arguing the juvenile court had

violated R.C. 2151.35(B)(1) by failing to conduct dispositional hearings for R.B. and B.C.

within 90 days of BCDJFS filing its complaints alleging R.B. and B.C. were neglected and

dependent children, we find res judicata now bars Mother from raising that issue in this

appeal. For these reasons, Mother's first assignment of error lacks merit and is overruled.

Assignment of Error No. 2:

{¶ 21} THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO APPELLANT'S

PREJUDICE WHEN IT PROHIBITED MOTHER FROM EXPLORING A WITNESS'

POTENTIAL BIAS.

{¶ 22} In her second assignment of error, Mother argues the juvenile court's decision

granting permanent custody to BCDJFS should be reversed when considering the juvenile

court refused to allow Mother to "explore the potential bias" of the caseworker on cross-

examination. We disagree.

{¶ 23} "Under Evid.R. 616(A), any witness can be impeached by a showing of

prejudice, bias, interest, or motive through examination or by extrinsic evidence." In re

Johnson, 12th Dist. Butler No. CA2010-07-189, 2011-Ohio-2466, ¶ 10. However, even in

permanent custody cases, it is well established that the admission or exclusion of evidence

rests within the juvenile court's sound discretion. In re A.F., 12th Dist. Butler No. CA2011-

12-233, 2012-Ohio-2958, ¶ 32. This includes the admission or exclusion of evidence under

Evid.R. 616(A). Kelm v. Conkel, 10th Dist. Franklin No. 16AP-494, 2017-Ohio-8545, ¶ 7-8.

Because of this, "a reviewing court should not disturb evidentiary decisions in the absence

of an abuse of discretion that has created material prejudice." In re J.D., 12th Dist. Butler

No. CA2005-09-375, 2006-Ohio-3468, ¶ 7. An abuse of discretion connotes more than an

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error of law or judgment. In re K.G., 12th Dist. Clinton No. CA2020-11-017, 2021-Ohio-

2154, ¶ 19. "An abuse of discretion implies that the trial court's attitude was unreasonable,

arbitrary, or unconscionable." In re P.B., 12th Dist. Warren No. CA2019-10-108, 2021-

Ohio-414, ¶ 14, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Therefore,

when analyzing whether the juvenile court erred by refusing to allow Mother to "explore the

potential bias" of the caseworker assigned to R.B.'s and B.C.'s cases as part of her cross-

examination of that witness, "we must determine whether the juvenile court acted

unreasonably, arbitrarily, or unconscionably in deciding the evidentiary issues." In re A.S.,

183 Ohio App.3d 697, 2009-Ohio-3932, ¶ 53 (12th Dist.).

{¶ 24} Mother argues it was error for the juvenile court to prohibit her from asking the

caseworker assigned to R.B.'s and B.C.'s cases on cross-examination "about whether she

was aware if the children's therapist shared her opinion about reunification" of Mother with

her two children. Specifically, Mother argues it was error for the juvenile court to prohibit

her from asking the caseworker if R.B.'s and B.C.'s therapist had shared with her (the

caseworker) her (the therapist's) opinion about whether she (the therapist) believed Mother

could successfully reunify with R.B. and B.C. and whether she (the therapist) believed

Mother had made progress in her individual and family therapy. Mother also argues it was

error for the juvenile court to deny her the ability to ask the caseworker if her

recommendation that permanent custody of R.B. and B.C. be granted to BCDJFS was "in

compliance with all the service providers" involved in this case. To support this claim,

Mother argues the juvenile court should have permitted her to ask the caseworker these

questions because the way in which the caseworker ultimately came to her conclusion that

permanent custody of R.B. and B.C. should be granted to BCDJFS was "relevant and

essential to Mother's case."

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{¶ 25} Although this court has spent significant effort attempting to understand

Mother's argument, we nevertheless find ourselves unable to fully understand Mother's

challenge given that it provides little, if any, explanation as to how asking the caseworker

these questions would have resulted in the caseworker providing responses indicating she

may have harbored prejudice or bias against Mother.4 However, even when setting aside

this court's confusion, the record indicates that the juvenile court prohibited Mother from

asking the caseworker these questions upon confirming with Mother that her therapist, as

well as R.B.'s and B.C.'s therapist, had all been subpoenaed to testify at the hearing on

BCDJFS' motions for permanent custody, thus rendering the caseworker's testimony about

what the therapists' may have shared with the caseworker regarding the therapists' own

opinions about the possibility of successful reunification of Mother with R.B. and B.C.

unnecessary. We find no abuse of the discretion in the juvenile court's decision. This is

because, given the record properly before this court, the juvenile court's decision prohibiting

Mother from asking the caseworker these questions was not unreasonable, arbitrary, or

unconscionable. This is particularly true here when considering Mother has also failed to

demonstrate how the juvenile court's decision prohibiting her from asking the caseworker

these questions subjected her to any resulting prejudice. Therefore, finding no merit to any

of Mother's arguments raised herein, Mother's second assignment of error lacks merit and

is overruled.

Assignment of Error No. 3:

{¶ 26} THE TRIAL COURT ERRED BY FINDING THAT PERMANENT CUSTODY

OF THE CHILDREN TO THE AGENCY WAS IN THE CHILDREN'S BEST INTERESTS,

4. We note that even the juvenile court had trouble understanding the purpose of Mother's questioning the
caseworker in this manner. This is evidenced by the fact the juvenile court at one point asked Mother, "what
are we talking about," a question the juvenile court later followed up by stating, "I'm still confused by the
question" and "I wouldn't know how to answer that question."
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BECAUSE AWARDING PERMANENT CUSTODY TO THE AGENCY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 27} In her third assignment of error, Mother argues the juvenile court erred by

granting permanent custody of R.B. and B.C. to BCDJFS because its decision finding it was

in R.B.'s and B.C.'s best interest to grant permanent custody was against the manifest

weight of the evidence. We disagree.

Permanent Custody Standard of Review

{¶ 28} Before a mother's constitutionally protected liberty interest in the care and

custody of her children may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.

Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Because the state is required to prove

the statutory standards for permanent custody have been met by clear and convincing

evidence, "[a]n appellate court's review of a juvenile court's decision granting permanent

custody is generally limited to considering whether sufficient credible evidence exists to

support the juvenile court's determination." In re D.P., 12th Dist. Butler No. CA2020-07-

074, 2020-Ohio-6663, ¶ 13, citing In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and

CA2014-06-131, 2014-Ohio-5009, ¶ 6; and In re A.S., 12th Dist. Butler Nos. CA2019-05-

071, CA2019-05-072, and CA2019-05-073, 2019-Ohio-4127, ¶ 19. "This court will therefore

reverse a juvenile court's decision to grant permanent custody only if there is a sufficient

conflict in the evidence presented." In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and

CA2019-03-002, 2019-Ohio-3143, ¶ 17, citing In re K.A., 12th Dist. Butler No. CA2016-07-

140, 2016-Ohio-7911, ¶ 10. "However, even if the juvenile court's decision is supported by

sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is

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against the manifest weight of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-

04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164,

2016-Ohio-72, ¶ 19.

{¶ 29} In determining whether a juvenile court's decision to grant a motion for

permanent custody is against the manifest weight of the evidence, an appellate court

"'weighs the evidence and all reasonable inferences, considers the credibility of witnesses

and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost

its way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered.'" In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru

CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence,

there is a presumption in favor of the findings made by the finder of fact and evidence

susceptible to more than one construction will be construed to sustain the verdict and

judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15, citing

In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238,

2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21. "We are especially mindful of this in

permanent custody cases." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-

1000, ¶ 26, citing In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-4911, ¶

13 ("[t]he presumption in weighing the evidence is in favor of the finder of fact, which we

are especially mindful of in custody cases").

Applicable Permanent Custody Statute and Two-Part Permanent Custody Test

{¶ 30} "A public children services agency may seek permanent custody of a child in

an abuse, neglect, or dependency proceeding in one of two ways." In re S.H., 12th Dist.

Butler Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 17. "An agency may

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either (1) obtain temporary custody of the child and then file a motion for permanent

custody, or (2) request permanent custody as part of its original abuse, neglect, or

dependency complaint." In re A.A., 12th Dist. Clermont No. CA2015-12-098, 2016-Ohio-

2992, ¶ 9, citing In re T.K.K., 12th Dist. Butler No. CA2012-01-008, 2012-Ohio-3203, ¶ 22.

Because BCDJFS filed its motions for permanent custody of R.B. and B.C. after the juvenile

court had already issued an initial disposition, it was R.C. 2151.414(B)(1) that applied to

BCDJFS' motions for permanent custody at issue in this case. See In re T.K.K. at ¶ 23,

fn.1 (noting that R.C. 2151.414[B][1] "generally applies when an agency files a motion for

permanent custody after an initial disposition"); see also In re W.R., 12th Dist. Fayette No.

CA2011-08-016, 2012-Ohio-382, ¶ 30 ("[i]n cases where an agency files a request for

permanent custody as part of an initial disposition the court is guided by the standards in

R.C. 2151.353[A][4]")

{¶ 31} Pursuant to R.C. 2151.414(B)(1), "the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

makes findings pursuant to a two-part test." In re M.H., 12th Dist. Clermont Nos. CA2021-

08-050 thru CA2021-08-052, 2022-Ohio-49, ¶ 30, citing In re G.F., 12th Dist. Butler No.

CA2013-12-248, 2014-Ohio-2580, ¶ 9. In accordance with that two-part test, the juvenile

court must first find the grant of permanent custody to the agency is in the best interest of

the child, utilizing, in part, the factors set forth in R.C. 2151.414(D). In re D.K.W., 12th Dist.

Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. The juvenile court must then find one

of the circumstances set forth in R.C. 2151.414(B)(1)(a) to (e) apply. In re R.F., 12th Dist.

Warren Nos. CA2021-06-052, CA2021-06-053, and CA2021-06-056, 2021-Ohio-4118, ¶

10, citing In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. Only

one of these findings must be met to satisfy the second prong of the two-part permanent

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custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio- 3188, ¶ 12.

"This includes a circumstance, often referred to as the '12 of 22' provision, where the subject

child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period." In re A.D., 12th Dist. Clermont No. CA2021-11-060, 2022-

Ohio-736, ¶ 20, citing R.C. 2151.414(B)(1)(d). This also includes a circumstance where the

child has been abandoned. R.C. 2151.414(B)(1)(b).

{¶ 32} When considering the best interest of a child in a permanent custody case,

the juvenile court is required under R.C. 2151.414(D)(1) to consider certain enumerated

factors. In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-

Ohio-3341, ¶ 32. These factors include, but are not limited to: (1) 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; (2)

the wishes of the child, as expressed directly by the child or through the child's guardian ad

litem; (3) the custodial history of the child; (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 to the agency; and (5) whether any of the factors listed in R.C.

2151.414(E)(7) thru (11) apply in relation to the parents and child. In re J.C., 12th Dist.

Brown No. CA2017-11-015, 2018-Ohio-1687, ¶ 22. "The juvenile court may also consider

any other factors it deems relevant to the child's best interest." In re A.J., 12th Dist.

Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 24. No one factor is given greater weight

than the others. In re R.D., 12th Dist. Clermont Nos. CA2021-05-017 and CA2021-05-018,

2021-Ohio-3780, ¶ 25. Nor is any one factor dispositive. In re K.P., 12th Dist. Preble No.

CA2021-11-016, 2022-Ohio-1347, ¶ 19.

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Mother's Argument and Analysis

{¶ 33} Mother does not challenge the juvenile court's finding R.B. and B.C. had been

in the temporary custody of BCDJFS for at least 12 months of a consecutive 22-month

period prior to BCDJFS' filing of its permanent custody motions. Mother instead argues the

juvenile court erred by finding it was in R.B.'s and B.C.'s best interest to grant permanent

custody to BCDJFS. To support this claim, Mother argues it was error for the juvenile court

to find it was in R.B.'s and B.C.'s best interest to grant permanent custody to BCDJFS

because she has successfully addressed the issues that resulted in R.B.'s and B.C.'s

removal from her custody and care, has exhibited stability in her life, is employed, lives in a

three-bedroom apartment, has transportation, and has remained clean and sober for a

period of several years. Mother also argues it was error for the juvenile court to find it was

in R.B.'s and B.C.'s best interest to grant DCDJFS permanent custody considering she has

exhibited "appropriate interactions and interrelationship" with both children during her

visitation time. Mother further argues it was error for the juvenile court to find permanent

custody was in R.B.'s and B.C.'s best interest given the children's' therapist testified that

she has "no concerns" with Mother's interactions with either R.B. or B.C. This is in addition

to Mother arguing it was error for the juvenile court to find it was in R.B.'s and B.C.'s best

interest to grant permanent custody to BCDJFS because R.B. "enjoys his sessions" with

Mother, because B.C. still refers to her as "Mom" and is "comfortable doing activities with

her," and because she has "taken steps to become a better parent by enrolling and

completing parenting classes."

{¶ 34} After a full and through review of the record, however, we find no error in the

juvenile court's decision finding it was in R.B.'s and B.C.'s best interest to grant permanent

custody to BCDJFS. This holds true even though the record indicates Mother had

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completed some of her case plan services. In re A.R., 12th Dist. Butler No. CA2015-08-

143, 2016-Ohio-4919, ¶ 18 ("the case plan is simply a means to a goal, but not the goal

itself"); In re G.C., 12th Dist. Butler Nos. CA2016-12-237 thru CA2016-12-240, 2017-Ohio-

4226, ¶ 42 ("successful completion of one's case plan is not dispositive of the issue of

reunification"). The fact that Mother may have a strong bond with R.B. and B.C. does not

change this outcome. In re S.M., 12th Dist. Warren No. CA2018-07-076, 2018-Ohio-4654,

¶ 25 (strong bond between mother and child is but one factor to be considered when

determining the best interest of a child); In re I.B., 12th Dist. Butler No. CA2014-12-244,

2015-Ohio-1344, ¶ 20 (strong bond between mother and child is but one factor to consider

when determining the best interest of a child).

{¶ 35} Neither does the fact that Mother may be able to exhibit "appropriate

interactions and interrelationship" during her unsupervised visitation time with R.B. and

visitation time conducted via video with B.C. This is because, despite Mother's claims that

she has now turned her life around to the point where reunification with R.B. and B.C. is

possible, the record nevertheless provides sufficient credible evidence to support the

juvenile court's decision finding it was in R.B.'s and B.C.'s best interest to grant permanent

custody to BCDJFS. This includes evidence that both R.B. and B.C. have expressed their

desire to remain with their respective foster families rather than be returned to the custody

and care of Mother. This is certainly understandable given the damage that was done to

both R.B. and B.C. while in Mother's care. Therefore, because a child's best interests are

served by the child being placed in a permanent situation that fosters growth, stability, and

security, In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-

Ohio-3341, ¶ 60, and because the record indicates R.B.'s and B.C.'s placement with their

respective foster families has done wonders for their development both physically and

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mentally, we find no error in the juvenile court's decision granting permanent custody of

R.B. and B.C. to BCDJFS. Accordingly, finding no merit to any of the arguments raised by

Mother herein, Mother's third assignment of error lacks merit and is overruled.

Conclusion

{¶ 36} For the reasons outlined above, and finding no merit to any of the arguments

Mother raised in support of her three assignments of error, the juvenile court's decision

granting permanent custody of R.B. and B.C. to BCDJFS is affirmed.

{¶ 37} Judgment affirmed.

M. POWELL, P.J., and PIPER, JJ., concur.

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