[Cite as In re Baby Boy W., 2011-Ohio-2337.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN THE MATTER OF:
BABY BOY W., CASE NO. 5-10-39
ALLEGED DEPENDENT CHILD,
OPINION
[AMBER W. - APPELLANT].
Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 21030018
Judgment Affirmed
Date of Decision: May 16, 2011
APPEARANCES:
Charles R. Hall, Jr. for Appellant
Mark C. Miller and Benjamin E. Hall for Appellee
Case No. 5-10-39
PRESTON, J.
{¶1} Mother-appellant, Amber W. (hereinafter “Amber”), appeals the
Hancock County Court of Common Pleas’ decision awarding permanent custody
of her child, Baby Boy W., to the Hancock County Department of Job and Family
Services: Children’s Protective Services Unit (hereinafter “CPSU”). For the
reasons that follow, we affirm.
{¶2} On June 29, 2010, the trial court issued an ex parte order awarding
CPSU emergency temporary custody of Amber’s son, Baby Boy W. (Doc. No. 1).
On June 30, 2010, CPSU filed a complaint alleging Baby Boy W. was a dependent
child as defined in R.C. 2151.04(b)-(d). (Doc. No. 2).
{¶3} At the July 8, 2010 shelter care hearing, the trial court concluded that
probable cause existed for the filing of the ex parte order, and that the continued
residence in the child’s own home would be contrary to the child’s best interest.
The trial court ordered that the child be placed in CPSU’s emergency temporary
custody. (Doc. No. 9). The trial court also concluded that reasonable efforts to
prevent the removal of the child were unnecessary since Amber had her parental
rights involuntarily and permanently terminated with respect to her other two
children. (Id.).
{¶4} On September 9, 2010, an adjudication hearing was held, and the trial
court found that the child was a dependent child as defined in R.C. 2151.04(b)-(d).
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(Doc. No. 19). The trial court scheduled a dispositional hearing for September
16, 2010. (Id.).
{¶5} On September 14, 2010, CPSU filed a motion for a determination that
reasonable efforts were unnecessary pursuant to R.C. 2151.419(A)(2). (Doc. No.
20). CPSU requested that a hearing on the motion be held on September 16, 2010
in lieu of the scheduled dispositional hearing. (Id.). On September 16, 2010, the
trial court held a hearing on the motion and, thereafter, granted the motion. (Doc.
No. 22). The trial court then scheduled a review of the permanency plan for
October 12, 2010. (Id.).
{¶6} On September 21, 2010, CPSU filed a motion for permanent custody
pursuant to R.C. 2151.353, 2151.413, and 2151.414. (Doc. No. 23).
{¶7} On October 28, 2010, a hearing was held to review the permanency
plan wherein the parties stipulated that CPSU had attempted to achieve
permanency for the child by filing a motion for permanent custody. (Doc. No. 33).
{¶8} On November 15-16, 2010, the trial court held a hearing on CPSU’s
motion for permanent custody and, thereafter, took the matter under advisement.
(Doc. No. 38). On November 22, 2010, the trial court granted CPSU’s motion for
permanent custody thereby terminating Amber’s parental rights to Baby Boy W.
(Doc. No. 39).
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{¶9} On December 17, 2010, Amber filed a notice of appeal. (Doc. No. 42).
Amber now appeals raising three assignments of error for our review. We elect to
address Amber’s third assignment of error out of the order presented in her brief.
ASSIGNMENT OF ERROR NO. I
THE COURT SHOULD FIND THAT THE JUDGMENT
ENTRY APPEALED FROM IN THE HANCOCK COUNTY
JUVENILE COURT ON NOVEMBER 22, 2010 IS NOT A
FINAL APPEALABLE ORDER.
{¶10} In her first assignment of error, Amber argues that this Court lacks
jurisdiction for lack of a final appealable order since the trial court failed to hold a
dispositional hearing.
{¶11} The record indicates that Amber filed a motion to dismiss the case
with this Court for lack of a final appealable order on February 7, 2011. On
February 24, 2011, however, we denied the motion finding that the judgment entry
terminating Amber’s parental rights and awarding CPSU permanent custody of
Baby Boy W. was a final appealable order under R.C. 2505.02(B)(2).
{¶12} Amber’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT’S DECISION TO TERMINATE THE
APPELLANT’S PARENTAL RIGHTS AND GRANT
PERMANENT CUSTODY TO THE DEPARTMENT
VIOLATED THE APPELLANT’S DUE PROCESS RIGHTS.
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{¶13} In her third assignment of error, Amber argues that the trial court
violated her procedural due process rights by failing to hold a separate
dispositional hearing.
{¶14} When a trial court proceeds on an original neglect, dependency, or
abuse complaint under R.C. 2151.35(B)(1), it is required to bifurcate the
proceedings into an adjudication and a disposition. Baby Girl Baxter (1985), 17
Ohio St.3d 229, 233, 479 N.E.2d 257; In re J.H., 12th Dist. Nos. CA2005-11-019
and CA2005-11-020, 2006-Ohio-3237, ¶¶22-27. A trial court need not hold these
hearings on separate days or even at separate times; however, “there must be a
definitive bifurcation of the proceedings so that the parties are afforded an
opportunity to present evidence at both the adjudicatory and dispositional
hearings.” In re J.H., 2006-Ohio-3237, at ¶27. A trial court’s failure to bifurcate
proceedings, as required both by R.C. 2151.35(B)(1) and Juv.R. 34(A), constitutes
reversible error. Baby Girl Baxter, 17 Ohio St.3d at 233. See, also, In re Malone
178 Ohio App.3d 219, 2008-Ohio-4412, 897 N.E.2d 672, ¶20.
{¶15} The record in this case demonstrates that the trial court held a
dispositional hearing on November 15-16, 2010, though not specifically labeled as
such by the trial court or the parties herein. Since Amber had her parental rights
terminated with respect to two of Baby Boy W.’s siblings, the trial court
determined that the agency was not required to make reasonable efforts pursuant
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to R.C. 2151.419(A)(2)(e). Following that determination, R.C. 2151.413(D)(2)
required CPSU to file a motion requesting permanent custody. R.C.
2151.414(A)(2) provides, in pertinent part, “[i]f a motion is made under division
(D)(2) of section 2151.413 of the Revised Code and no dispositional hearing has
been held in the case, the court may hear the motion in the dispositional hearing
required by division (B) of section 2151.35 of the Revised Code.” Our review of
the record leads us to conclude that the trial court considered CPSU’s motion for
permanent custody as part of its November 15-16, 2010 dispositional hearing in
accordance with R.C. 2151.414(A)(2). As such, the trial court did not violate
Amber’s procedural due process rights.
{¶16} Amber’s third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE JUVENILE COURT ERRED AND ABUSED ITS
DISCRETION AS THE FINDINGS MADE BY THE COURT
TO SUPPORT ITS GRANT OF PERMANENT CUSTODY TO
HCJFS ARE NOT CONSISTENT WITH THE STANDARD OF
CLEAR AND CONVINCING EVIDENCE, AND THE TRIAL
COURT’S GRANT OF PERMANENT CUSTODY IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17} In her second assignment of error, Amber argues that CPSU failed to
clearly and convincingly demonstrate the required findings under R.C. 2151.414
for the trial court to grant it permanent custody. Amber similarly argues that the
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trial court’s grant of permanent custody was against the manifest weight of the
evidence.
{¶18} “It is well recognized that the right to raise a child is an ‘essential’
and ‘basic’ civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679 N.E.2d 680,
citing In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, quoting
Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551.
Therefore, “a parent’s right to the custody of his or her child has been deemed
‘paramount.’” Hayes, 79 Ohio St.3d at 48, citing In re Perales (1977), 52 Ohio
St.2d 89, 97, 369 N.E.2d 1047. Because parents have a fundamental liberty
interest in the custody of their own children, this important legal right is “protected
by law and, thus, comes within the purview of a ‘substantial right[.]’” In re
Murray, 52 Ohio St.3d at 157. Therefore, parents “‘must be afforded every
procedural and substantive protection the law allows.’” Hayes, 79 Ohio St.3d at
48, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.
{¶19} R.C. 2151.414(B)(2) requires a court to grant permanent custody of
the child to the moving party “if the court determines in accordance with [R.C.
2151.414(E)] that the child cannot be placed with one of the child’s parents within
a reasonable time or should not be placed with either parent” and determines that
permanent custody is in the best interest of the child by considering all relevant
factors, including but not limited to, the five factors listed in R.C. 2151.414(D). If
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the court determines by clear and convincing evidence that one or more of the
sixteen factors listed in R.C. 2151.414(E) exist, the court “shall enter a finding
that the child cannot be placed with either parent within a reasonable time or
should not be placed with either parent.” R.C. 2151.414(E) (emphasis added).
{¶20} The trial court’s findings must be supported by clear and convincing
evidence and will not be overturned as against the manifest weight of the evidence
if the record contains competent, credible evidence by which the court could have
formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established. R.C. 2151.414(B); In re
Forest S. (1995), 102 Ohio App.3d 338, 344-45, 657 N.E.2d 307; Cross v. Ledford
(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus.
{¶21} At the beginning of the dispositional hearing, Amber stipulated, in
pertinent part, that she had her parental rights permanently and involuntarily
terminated as to two of Baby Boy W.’s siblings. (Nov. 15-16, 2010 Tr. at 10-12).
Judgment entries reflecting that fact were also admitted by stipulation. (CPSU
Exs. 5-6). Thereafter, Robin Brown, a mental health/substance abuse counselor at
Century Health, testified that Amber was a former Century Health client in 2003,
and, in 2007, she diagnosed Amber with major depression, recurrent and moderate
rule-out delusional disorder. (Nov. 15-16, 2010 Tr. at 15-18). Brown testified that
delusional disorder is “a form of mental illness where someone believes that
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something that they’re saying is true but there’s no basis in fact for it.” (Id. at 18).
“Rule out” means that they were still determining whether or not Amber, in fact,
had a delusional disorder. (Id.). Brown testified, however, that Amber had an
actual diagnosis of post-traumatic stress disorder and attention deficit disorder, as
well as major depression. (Id. at 19). Brown testified that doctors were concerned
that Amber might have a delusional disorder from statements she made from 2007
to 2009. (Id. at 20). Brown testified that Dr. Darlene Barnes noted in June 2008
that Amber was “forgetful, distracted, overwhelmed, easily agitated, irritable,
irrational in reasoning and thought * * * did not function well around others and
had difficultly working collaboratively.” (Id. at 20-21). Brown testified that
Amber was prescribed counseling and medication, but Amber stopped and started
the counseling sessions on several different occasions and failed to take her
medications. (Id. at 20-23). Amber’s case was closed in May 2009 for non-
compliance, according to Brown. (Id.). Brown testified that CPSU referred Amber
to Century Health in August 2010 for a substance abuse assessment. (Id. at 22-23).
Brown testified that Denise Kring, the Century Health mental therapist who saw
Amber in August 2010, diagnosed Amber with anxiety disorder with a rule-out of
intermittent explosive disorder. (Id. at 23-24). Brown testified that Denise wanted
Amber to attend counseling, but Amber failed to attend. (Id. at 25-26). Brown
testified that Amber attended a total of three (3) counseling sessions from August
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9, 2010 until November 11, 2010. (Id. at 26-27). Brown testified that Amber
missed two (2) scheduled counseling sessions, and they had not heard from Amber
since September 21, 2010. (Id. at 28). Brown testified that she is concerned that
Amber still has an untreated mental illness. (Id. at 29).
{¶22} On cross-examination, Brown testified that Amber tested negative
for illegal substances on August 9, 2010 and at least two other times, and that
substance abuse has never been a concern in Amber’s case. (Id. at 30-31). Brown
testified that Kring’s August 12th diagnosis that Amber suffered from anxiety and
intermittent explosive disorder was changed on August 26th to a diagnosis of
anxiety. (Id. at 31-32). Brown testified that their records did not indicate whether
Amber was taking medication for her anxiety. (Id. at 32-33). Brown testified that
Amber had a history of attention deficit disorder but no current diagnosis of such.
(Id. at 37). On re-direct, Brown testified that the diagnosis of record was made by
the psychiatrist in 2008, who diagnosed Amber with major depression, recurrent,
moderate with attention deficit disorder, post-traumatic stress disorder, and
anxiety. (Id. at 39-40). Brown testified that Amber had been prescribed Lamictal,
a mood stabilizer, Straterra for attention deficit disorder, and later those
medications were changed to Depakote, a mood stabilizer, and Zoloft for
depression. (Id. at 41). Brown testified that Amber stopped taking these
medications in 2008. (Id. at 42). Brown testified that Amber was unable to
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establish goals during her counseling sessions because she did not attend enough
counseling sessions. (Id. at 42-43).
{¶23} Rebecca Schumaker, a former parent educator and current case
worker at CPSU, testified that she was involved with Amber regarding her care of
three of her children. (Id. at 44-45, 49). Schumaker testified that she began
working with Amber and her daughter in May 2002 when Amber was fourteen or
fifteen (14 or 15) years old. (Id. at 49-50). Schumaker testified that she worked
with Amber on parent/child interaction, feeding, holding, and interacting with the
baby, and they were monitoring the child’s development. (Id. at 50). Schumaker
testified that Amber contacted the agency again for services when she was
pregnant with her second child in June 2006. (Id. at 51). Schumaker testified that
there were concerns with Amber’s care for her daughter, who was four years old
and escaping from the home. (Id.). Schumaker testified that she was concerned
about Amber’s daughter escaping from the home because it was not an isolated
incident, and Amber had not taken any action to stop it from re-occurring. (Id. at
52-53). Schumaker testified that Amber’s home was “very cluttered,” “piled with
boxes of items,” and “very chaotic” with Amber’s mother, Kathy Welly, living
there and bringing her boyfriend in and out of the home. (Id. at 54). Schumaker
further testified that she had some concerns with Welly, because Amber had
reported that Welly was an alcoholic and that they would engage in fist fights.
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(Id.). Schumaker also was concerned with two other individuals living in the
home: Eric McNarry, who had recently been released from prison after serving a
term for domestic violence; and Robert Essex, Amber’s sixty-year old boyfriend
and father of two of Amber’s children while still married to another woman. (Id. at
55).
{¶24} Schumaker testified that “[t]here was always so much drama that it
was very difficult to look into the issue of parent education” with Amber. (Id. at
56). Schumaker testified that Amber was concerned with sex offenders possibly
living in her apartment complex; nevertheless, Amber allowed her daughter to
spend a month with Randy Hernandez, a family member she thought was a sex
offender, and Alex Hernandez, a family member she thought had abused her
children. (Id. at 56-57). Schumaker testified that Amber told her that someone
was getting into her apartment through her attic, but the apartment management
explained that that could not be possible because of fire walls in the attic between
each apartment. (Id. at 57-58). Schumaker testified that Amber made an allegation
that the apartment maintenance man was watching her because he wanted to have
sex with her, when he was actually involved in ministry. (Id. at 59). Schumaker
testified that Amber had several heated disagreements with the apartment
complex’s management about them allowing the maintenance man into her
apartment when he just wanted to have sex with her. (Id. at 59). Schumaker
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testified that Harold W., Amber’s Uncle and registered sex offender, was
babysitting the children the night the police removed Amber’s two children from
the home in August 2008. (Id. at 59-60). Schumaker testified that her visitations
with Amber were “distorted” because Amber would continually make allegations
against people. (Id. at 62). For example, Amber alleged that she had a video
showing Essex’s teenage daughter being sexually inappropriate with her daughter,
but the video was actually a Care Bears video. (Id.). In 2007, Amber alleged that
her son, who was one year old at the time, was able to walk out of the foster
parents’ home and walk to Amber’s grandmother’s house and put a magical spell
on her grandmother. (Id. at 63). Schumaker testified that Amber fired her from the
case in 2007, and that Amber had made very little progress throughout the case.
(Id.). Schumaker testified that she attempted to work with Amber on the first case
for almost two and a half (2.5) years, and the second case for a little over one (1)
year with little progress due to Amber’s inability to focus and her argumentative
disposition. (Id. at 64). Schumaker testified that Amber received an “excessive”
amount of parent education compared to that normally provided for dealing with
the sorts of issues Amber manifested. (Id. at 67). Schumaker testified that Amber
smacked her one-year-old child on the hands during a supervised visitation and
remarked “[s]ometimes you gotta do what you gotta do.” (Id. at 67-68).
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Schumaker testified that Amber could not appropriately parent her children. (Id. at
69-70).
{¶25} On cross-examination, Schumaker testified that CPSU became
involved in the case shortly after she began, and that her relationship with Amber
began to deteriorate shortly after CPSU became involved. (Id. at 72). Schumaker
testified that she would not be aware of any progress that Amber has made since
October 2007. (Id. at 73). Schumaker testified that she was not certain whether
Harold W. was watching the children when the police picked up the children at the
home, but that she had concerns with all of Amber’s uncles, who were either sex
offenders or had prior criminal convictions. (Id. at 73-75). On re-direct,
Schumaker testified that Harold W. was in the home after Amber was made aware
of the fact that he was a registered sex offender, though he was not there with the
children. (Id. at 78).
{¶26} Megan Lauck, a caseworker with HCJFS, testified that she was Baby
Boy W.’s case worker since July 2010. (Id. at 81-83). Lauck testified that Amber
thought the father of the child was “Dallas,” a guy she previously attended high
school with and had sex with during a party in Findlay, though she did not know
Dallas’s last name or his whereabouts. (Id. at 84-85). Lauck testified that Amber
wanted her half-brother, Eric Welly, to be listed as the child’s father, which Lauck
thought would be confusing to the child. (Id. at 85-86). Lauck testified that Baby
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Boy W. was in CPSU’s temporary custody as of July 1, 2010 after his removal due
to Amber’s prior involuntary termination of her parental rights for two of Baby
Boy W.’s siblings. (Id. at 87-88). Lauck testified that adoption was Baby Boy
W.’s permanency goal. (Id. at 95). Lauck testified that Amber was involved in the
case plan, and that the case plan’s first objective was to establish paternity, but
Amber was unable to provide any meaningful information to identify the father.
(Id. at 97). Lauck testified that the case plan’s second objective was to have Baby
Boy W. assessed for developmental delays, which required a release form signed
by Amber; however, Amber would not release the child’s medical records to
CPSU. (Id. at 99-105). Lauck testified that they had to obtain a court order to
obtain the child’s medical records so that he could be assessed for delays. (Id. at
105). Lauck testified that Baby Boy W. was delayed in every area but one. (Id. at
106). Lauck testified that the case plan’s third objective was for the child to
receive appropriate medical care, and Amber frustrated that objective by not
cooperating in having the child assessed, even though Amber believed the child
may have had Down syndrome and asked that he be assessed. (Id. at 107-08).
{¶27} Lauck testified that the case plan’s fourth objective was visitation
with the child. (Id. at 109). Lauck testified that she was concerned with Amber
placing the child’s pacifier in her mouth before placing it in the child’s mouth,
because she could transfer cold and flu germs to the child. (Id. at 111). Lauck
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further testified that Amber would report suspected injuries to the child that were
not, in fact, injuries. (Id. at 111). Amber also fed the child prior to his scheduled
feeding time, which caused the child to spit up. (Id. at 112-14). Lauck testified
that she witnessed Amber being hostile toward staff during visitation. (Id. at 114).
Lauck testified that her July 19, 2010 home visit with Amber was confrontational,
and Amber wanted to talk about how CPSU’s case was unfounded. (Id. at 116-17).
Amber told Lauck that Baby Boy W. was taken away because CPSU thought she
was on drugs even though substance abuse was never CPSU’s reason for the
removal of the child. (Id. at 117). Lauck testified that she was concerned that Eric
Welly and his girlfriend were living with Amber even though Amber stated they
were not living in the home. (Id. at 118-19). Lauck testified that she attempted to
visit Amber’s home on August 11, 2010, but no one answered the door even
though she could hear people inside the home. (Id. at 120). Lauck testified that
her August 31, 2010 home visit was, again, confrontational and Eric Welly was in
the home again with his girlfriend. (Id. at 121-22). During this visit, Amber again
conveyed that she thought CPSU was taking her child because they thought she
was on drugs. (Id. at 123). Amber also conveyed to Lauck that she thought CPSU
became involved with her daughter because her daughter trashed her house. (Id. at
123-24). During another visitation, Amber expressed concern over a scratch on
Baby Boy W.’s leg, but Lauck did not see any visible scratch on the child. (Id. at
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125). During a home visit, Amber expressed concern that one of her friends,
James Bush, was texting her and threatening to beat up Baby Boy W. (Id. at 129).
Lauck testified that Amber had several reasons that the child should be removed
from the foster home, including the alleged scratched leg, an alleged broken blood
vessel in the child’s eye, as well as Bush’s alleged threats to the child. (Id. at 131).
{¶28} Lauck further testified that Amber requested that her father, her
sister, her brother, and Sarah Miller be allowed to have visitation with Baby Boy
W., but that they informed Amber that the visits were for her to bond with the
child. (Id. at 132). Lauck testified that Harmony House eventually allowed Amber
to bring one person, and she chose her brother, Eric Welly. (Id. at 133). Lauck
testified that, on October 4th, Amber reported that the child had a large broken
blood vessel in his eye; however, Lauck checked the child and observed no such
injury. (Id. at 136-37). Lauck testified that Amber was not able to provide an
adequate permanent home for the child. (Id. at 138). Lauck testified that Amber
has not accepted responsibility for the removal of her two other children; rather,
Amber blamed her daughter and everyone involved. (Id. at 139). Lauck testified
that Baby Boy W. “seems to be content” with Amber, but that Baby Boy W. is
“very bonded” to his foster parents. (Id. at 140). Lauck further testified that Baby
Boy W. is “always a very happy baby when [he] goes [to the foster care home],
smiling. He seems very happy and content. Healthy.” (Id. at 140-41). Lauck
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testified that she did not believe that Amber could provide a safe home
environment because the house was not clean and the possibility of sex offenders
being in the home. (Id. at 142). Lauck further testified that Amber still has rooms
set up for her two other children who have been taken away permanently, because
Amber believes she will be allowed visitation with the children. (Id. at 143).
Lauck testified that Baby Boy W. would benefit from adoption, because he needs
parents who would sacrifice their needs for his needs, and, specifically, parents
that would follow-up with his medical needs. (Id. at 146). Lauck testified that
Amber could not provide the care Baby Boy W. needs. (Id. at 146-47). Lauck
testified that she did not believe the child could be returned to Amber even if the
case plan was continued for another six to twelve (6-12) months. (Id. at 149).
{¶29} On cross-examination, Lauck testified that she repeatedly asked
Amber to sign the paperwork so Baby Boy W. would get medical treatment, but
Amber refused because “she didn’t want him to receive services.” (Id. at 166).
Lauck testified that she would have talked with her supervisor or the prosecutor to
change the case plan from seeking permanent custody had she witnessed changes
in Amber’s ability to parent since the previous termination of parental rights, but
she did not witness Amber improve. (Id. at 173).
{¶30} Matt Stombaugh testified that he is a case manager at Open Arms
Domestic Violence and Rape Crisis Services, which operates/manages the
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Harmony House, a supervised visitation center. (Id. at 190-91). Stombaugh
testified that he oversees all the cases at the Harmony House, and that he had
facilitated visits between Amber and Baby Boy W. from July 28, 2010 to
November 12, 2010. (Id. at 191-93). Stombaugh testified that, during the July
28th visitation, Amber told Baby Boy W. about his other siblings, who were
permanently removed from Amber’s custody, and Amber placed Baby Boy W.’s
pacifier into her mouth and gave the pacifier back to Baby Boy W. after Baby Boy
W. spit it out on the floor. (Id. at 195). Amber also voiced concern over bumps on
the child’s head, which Stombaugh examined and determined to be “[s]mall,
reddish raised hair follicles. Nothing that [he] was overly concerned about.” (Id. at
196). During the July 30th visitation, Amber claimed that Baby Boy W. had
scratches on his face; she kissed Baby Boy W’s hands and said, “don’t scratch
yourself”; Baby Boy W. started crying, and Amber said, “see, you made yourself
cry”; Amber then said she needed to find mittens for the child. (Id. at 197).
During the August 4th visitation, Amber, again, asked about the bumps on Baby
Boy W.’s head, and those bumps were again determined to be “just raised hair
follicles, just maybe just a section of goose bumps that didn’t go down.” (Id. at
198-99). Stombaugh testified that Amber was late for her August 13th and 18th
visitations. (Id. at 199-200). During the August 18th visitation, Amber: told Baby
Boy W. that his brother and sister said they loved him; expressed concern over
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Baby Boy W.’s red eye, which was inspected and determined to be only a slight
irritation; and fell asleep. (Id. at 200-02). Stombaugh testified that Amber’s
recorded voicemail message states that “you’ve reached [Amber] and all of her
children’s names.” (Id. at 201). Stombaugh testified that Amber also fed Baby
Boy W. early and rapidly without burping him, contrary to staff’s advice, and the
child threw-up. (Id. at 202-04). Amber was late for the September 10th visitation
and refused to feed the child formula that was prepared by the foster parents. (Id.
at 205). Stombaugh testified that Amber was very argumentative and refused to
feed the child even though the child was hungry. (Id. at 206-07). Amber was also
late for the September 17th visitation and violated Harmony House policy by
bringing an unapproved guest, being hostile toward staff, and being inappropriate
in the child’s presence. (Id. at 208). During that visitation, Amber: argued with
Stombaugh about her placing the child’s pacifier into her mouth and giving it back
to the child; removed Baby Boy W.’s clothing for most of the visit, even though
the child was appropriately dressed for the temperature; and, again, reported
redness with the child’s eyelid, which was a minor irritation. (Id. at 209-12).
During the September 24th visitation, Amber was reminded not to talk with the
monitors, since the visitation was for her to bond with her child. (Id. at 213-14).
With respect to feeding Baby Boy W., Stombaugh testified that Harmony House
actually removed the child’s bottle from Amber, so that they could control the
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correct feeding times, which was the first time Stombaugh had ever had to do that
with a parent. (Id. at 216-17).
{¶31} On cross-examination, Stombaugh testified that Amber arrived to
visitation several times before the foster parents had arrived with the child. (Id. at
222-23). Stombaugh testified that Amber was four minutes late at most. (Id. at
224). Stombaugh testified that Amber correctly noticed that the child’s bottle was
dirty on two occasions, when a small piece of food or lettuce was stuck inside the
bottle. (Id. at 235-36). Stombaugh testified that Amber did not want to feed the
formula to the child because she expressed concern about a recall on the formula;
however, Stombaugh testified that he informed Amber that the recall was not for
the formula the foster parents were using. (Id. at 237). Stombaugh testified that
Amber attended twenty-nine (29) of thirty-two (32) possible visitations, and that
Amber cancelled two visitations, while the foster parents cancelled one. (Id. at
238). Stombaugh testified that they do not teach the parents how to interact with
their children, though they may suggest different ideas. (Id. at 240-41). On re-
direct, Stombaugh testified that Amber placed the child’s pacifier into her mouth
and then into the child’s mouth approximately twenty-two (22) times prior to the
September 17th visitation, and she was reminded once thereafter not to do so. (Id.
at 244-45).
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{¶32} Following Stombaugh’s testimony, the State rested, and the defense
called Sarah Miller to the stand. (Id. at 249-50). Miller testified that she had been
employed as a social worker at the Caughman Health Center in Findlay for the
past year and a half. (Id. at 250-51). Miller testified that Amber contacted her in
February 2010 to set up transportation to Maternal Fetal Medicine in Toledo
because she was pregnant. (Id. at 251-53). Soon thereafter, Amber began
attending a monthly half-hour support and education group for pregnancy and
parenting issues that Miller facilitated. (Id. at 253-55). Amber attended six (6) or
seven (7) of these meetings, and Amber participated very heavily and
appropriately in the group’s discussions. (Id. at 254-55). Miller testified that she
had some concern about why Amber did not have her children and had concern
about the circumstances surrounding CPSU’s removal of Amber’s children. (Id. at
255-56). Miller testified that she contacted Amber’s caseworker, Megan, to better
understand CPSU’s prior involvement, and Megan informed her that Baby Boy W.
was removed from Amber because of CPSU’s prior involvement with Amber. (Id.
at 256-57). Miller testified that she was aware that Amber was not required to
have services under a case plan, but she offered services to Amber nonetheless.
(Id. at 257-58). Amber declined mental health services from Miller, because
Amber said she was already receiving services from Century Health, but Amber
did participate in parenting support services. (Id. at 258-59). Miller testified that,
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as part of the parenting support services, Amber met with her one half hour
weekly. (Id. at 259). Miller testified that they discussed attachment to the child,
perceptions of being a mother, discipline, and strategies of self-care. (Id. at 260).
Miller further testified that Amber would complete homework worksheets and was
doing very well. (Id. at 260). Miller testified that she did not discover any
concerns with Amber during the five (5) weeks she spent with her, and that Amber
was “very compliant” with her prenatal care. (Id. at 260-61). Miller testified that
Amber was benefiting from the services at Help Me Grow, and that Amber
understood that CPSU was seeking permanent custody, though Amber believed
there might be a chance at reunification. (Id. at 262-63). Amber also told Miller
that she would sign the release so that Baby Boy W. could participate in services.
(Id. at 263-64). Amber indicated that, initially, she did not want to sign the release
form because the form had Baby Boy W.’s social security number on it. (Id. at
267). Miller testified that she could not determine whether or not Amber could
parent since she did not see Amber interact with her child, but Miller testified that
Amber did express how to appropriately parent during the time she worked with
her. (Id. at 268).
{¶33} On cross-examination, Miller testified that she started the parenting
support group, called Mothers Offering Mothers Support (MOMS), in January
2010 as a new group. (Id. at 271). Miller testified that Amber attended a total of
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eleven (11) hours of group parenting counseling and seven and one half (7.5)
hours of individualized parenting services. (Id. at 273-74). Miller testified that she
did not attend a visitation at the Harmony House, because Amber informed her
that she could not attend. (Id. at 276). Miller was unaware that Harmony House
allowed Amber to bring in one of five approved people to visitation, and that she
was one of those approved. (Id. at 276-77). Miller testified that she has never seen
Amber actually implement anything she learned through the parenting classes. (Id.
at 279). Miller testified that she was not aware that CPSU provided Amber with
over two and a half (2.5) years of parenting education, or that Amber alleged that
her older son was casting magical spells. (Id. at 280). Miller testified that she was
not aware of Amber’s anger issues and did not witness any anger issues with
Amber. (Id. at 282). Miller testified that she thought it odd that Amber wanted her
brother listed as the father of the child on the birth certificate, though she thought
Amber’s intentions were good. (Id. at 285). Miller testified that she thought
Amber’s parenting education was “very easy because she’s extremely open to
feedback, she’s very cooperative, very compliant.” (Id. at 286). Miller testified
that Amber’s individualized parenting goals were collaboratively developed
between Amber and her. (Id. at 290). Miller testified that Amber acknowledged
that she made a poor decision to leave her older children with her uncle, who
allowed the children to escape the home. (Id. at 294). Amber also told Miller that
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she thought CPSU was involved in the case because of the children’s father,
Robert Essex. (Id. at 295). On re-direct examination, Miller testified that Amber
was not confrontational during their counseling sessions, and that Amber was a
very appropriate participant. (Id. at 296-97). Miller found Amber “very enjoyable
to work with” and “not challenging to work with.” (Id. at 297).
{¶34} Amber testified that she resides alone in a three-bedroom, bath and a
half, in Findlay, Ohio. (Id. at 299-300). Amber testified that her daughter’s room
is still set up, because she still has rights to her. (Id. at 300). Amber testified that
she learned she was pregnant October 31st, and that in January or February they
discovered Baby Boy W.’s weight was low. (Id. at 302-03). Amber testified that
he also tested positive for Down syndrome at that time, so she met with Miller to
arrange transportation to the Maternal Fetal Hospital in Toledo, where she had
weekly appointments. (Id. at 303). Amber testified that she began attending the
MOMS class in February once a month, and that she did twelve (12) parenting
class sessions during 2008 to 2009 through FRC. (Id. at 304). Amber testified that
she learned about nutrition and massage at the MOMS classes, and that she
attended six or seven (6 or 7) of these classes. (Id. at 305). Amber testified that
Baby Boy W. was diagnosed with Down syndrome, had a low weight, and was
born “5-6, 18 inches.” (Id. at 306-07). Amber testified that CPSU took the baby
shortly after delivery; that the nurse told her that CPSU believed she was on drugs;
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and that CPSU did not tell her why they were taking the child. (Id. at 308-09).
Amber testified that she had her brother and his girlfriend present when case
workers visited her house, because she wanted witnesses to hear what was being
said since case workers had told her and Robert Essex different things in the
previous case. (Id. at 310-11). Amber testified that she worked with Lauck on a
case plan, but that Lauck never informed her what she could do to have Baby Boy
W. returned, so she sought parenting services on her own. (Id. at 311). Amber
testified that she completed a mental health assessment and a substance abuse
assessment, and there were no recommendations as a result of either assessment.
(Id. at 312-13). Amber testified that she visited Baby Boy W. at the Harmony
House, and that the appointments went well, except that the staff did not let her
feed Baby Boy W. when he was hungry. (Id. at 315-16). She testified that she
missed three (3) visits, and she put the pacifier in her mouth after it fell on the
floor because “[she]’d rather [herself] get sick than [her] four 4-month old get
sick.” (Id. at 316-17). Amber testified that she did not sign the release form
because it had Baby Boy W.’s social security number on it, and she did not feel
comfortable releasing that information. (Id. at 320). Amber further testified that
she did not want to share therapy records, evaluation goals, or IFSP reports with
CPSU, because she thought they would use the information against her. (Id. at
322). Amber did not believe that this would affect her child’s ability to receive
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care. (Id. at 323). Amber testified that she would follow CPSU’s requests, and
that she was “doing what [she could] to get [her] son.” (Id. at 326).
{¶35} On cross-examination, Amber testified that, before she delivered the
child, she did not think that CPSU would be involved. (Id. at 327-28). Amber
testified that she did not know the father’s whereabouts, but that she “seen him in
passing” from Findlay High School where she graduated from in 2005. (Id. at 328-
29). Amber testified that she wanted her brother to be on the child’s birth
certificate because he had been there for the child, and that she was going to tell
Baby Boy W. that her brother was his uncle. (Id. at 329). Amber testified that she
did not see any relationship between her wanting her brother on the birth
certificate and her parenting skills. (Id. at 330). Amber testified that her brother,
Eric, would be a good role model for the child even though Eric was recently
released from prison. (Id. at 332). Amber testified that she has had three prior
cases with CPSU, and that she worked with CPSU on the case plans, though she
did not finish parenting classes. (Id. at 333, 336). Amber testified that she “had no
clue” why Schumaker would testify that she told her that her son was casting
spells. (Id. at 340). Amber testified that it was not her fault her other children
were taken away but because “JFS likes to lie a lot and they thought they were
running the Court.” (Id. at 344). Amber testified that she collects SSI payments
for a developmental handicap. (Id. at 345). Amber acknowledged that she testified
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at the July 8, 2010 shelter care hearing that she was not willing to work with
CPSU, but testified here that she was willing to work with CPSU “as long as we
don’t have no chaos like the last time.” (Id. at 346-47). Amber testified that she
wanted Baby Boy W. removed from the foster home after discovering the dirty
bottle and his irritated eye. (Id. at 353). Amber also testified that she disagrees
with the Harmony House concerning when to feed the child, because the child was
hungry when she wanted to feed him. (Id. at 354). Amber testified that she sought
anger management on her own, and that Brown lied when she testified that she
was not in the anger management group. (Id. at 359-60).
{¶36} Don Schmidt, a CASA representative, testified that he had been
involved with Amber’s first case in 2005 to 2006. (Id. at 380-81). Schmidt
testified that he recommended that CPSU be granted permanent custody of Baby
Boy W., so that the child could be adopted. (Id. at 382). Schmidt testified, on
cross-examination, that he did not have any contact with Amber regarding Baby
Boy W. since Amber “fired him.” (Id. at 383). Schmidt testified that he was
confident in his recommendation despite not having done an independent
evaluation. (Id. at 384).
{¶37} After reviewing the evidence presented, the trial court concluded that
the State had clearly and convincingly demonstrated that the child cannot be
placed with Amber. (Nov. 22, 2010 JE, Doc. No. 39). We agree. Amber
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stipulated that she had her parental rights involuntarily terminated with respect to
two of Baby Boy W.’s siblings, and the trial court found that Amber had failed to
demonstrate any improvement since the previous termination of her parental
rights. (Id.). Under these circumstances, R.C. 2151.414(E)(11) applied, and as
such, the trial court was required, pursuant to R.C. 2151.414(E), to find that the
child should not be placed with Amber.
{¶38} Next, the trial court determined that it was in the child’s best interest
to award CPSU permanent custody. (Id.). The trial court stated that it had
considered the factors set forth in R.C. 2151.414(D)(1) for purposes of
determining the best interest of the child, which factors are:
(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;
(b) 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;
(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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
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(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
(Id.). Pursuant to R.C. 2151.414(D)(1)(e), the trial court noted that R.C.
2151.414(E)(11) was, again, applicable, since Amber’s parental rights had been
previously involuntarily terminated, and Amber had failed to demonstrate any
improvement since the previous termination of her parental rights, despite Miller’s
favorable report. (Id.). The trial court further noted that Amber was “resistant to
any help by the agency or in receiving much needed parent education or mental
health counseling,” and that, after spending more than two and a half (2.5) years
working with Amber, Shumaker concluded that Amber “simply cannot parent.”
(Id.).
{¶39} The trial court’s findings herein were supported by competent,
credible evidence by which it could have formed a firm belief or conviction that
the essential statutory elements for a termination of parental rights had been
established. R.C. 2151.414(B); In re Forest S., 102 Ohio App.3d at 344-45; Cross,
161 Ohio St. 469, at paragraph three of the syllabus. As an initial matter, we have
already noted that Amber stipulated that her parental rights had previously been
involuntarily terminated and failed to demonstrate that she could provide a legally
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Case No. 5-10-39
secure permanent placement and adequate care for the health, welfare, and safety
of the child, and therefore, R.C. 2151.414(E)(11) was applicable. (Nov. 15-16,
2010 Tr. at 10-12); (CPSU Exs. 5-6). The only evidence that Amber remedied the
circumstances leading to her prior termination of parental rights was Miller’s
favorable testimony; however, the trial court found Miller’s testimony less than
persuasive. (Nov. 22, 2010 JE, Doc. No. 39). Although the trial court failed to
state why it found Miller’s testimony lacking, it is probably because Miller’s
testimony was based upon only eighteen and a half (18.5) hours she worked with
Amber; whereas Schumaker’s testimony, for example, was based upon over two
and a half (2.5) years of working with Amber. Furthermore, although not
specifically relied upon by the trial court, Brown’s testimony indicated that Amber
had chronic mental or emotional illnesses for which she refused to follow
recommended treatment and which hindered her ability to properly care for her
children. See R.C. 2151.414(E)(2). Additionally, although not relied upon by the
trial court, Lauck testified that Amber in effect withheld medical diagnosis and
treatment of Baby Boy W. by failing to timely provide CPSU with a signed release
form. Amber’s reason for withholding her consent stemmed from her general
distrust of CPSU, but Amber’s action demonstrates her failure to put Baby Boy
W.’s interests above her own. See R.C. 2151.414(E)(8).
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{¶40} With respect to R.C. 2151.414(D)(1)(b), the child’s representative
recommended that CPSU be granted permanent custody of the child. The
testimony also indicated that granting CPSU permanent custody so that the child
could be adopted was necessary for the child to have a legally secure permanent
placement. R.C. 2151.414(D)(1)(d). For example, Lauck testified that she did not
believe the child could be returned to Amber even if the case plan was continued
for another six to twelve (6-12) months. (Nov. 15-16, 2010 Tr. at 149). With
respect to R.C. 2151.414(D)(1)(a), Lauck testified that the child’s interactions with
his foster caregivers was very favorable, while the child was “content” with
Amber. (Id. at 140-41). Finally, with respect to R.C. 2151.414(D)(1)(c), the
record indicates that the child was in CPSU’s temporary care since birth and was
never with Amber except for supervised visitation at the Harmony House. In light
of this record, we cannot conclude that the trial court’s decision to award CPSU
permanent custody was based upon insufficient evidence or against the manifest
weight of the evidence as Amber argues.
{¶41} Amber’s second assignment of error is, therefore, overruled.
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{¶42} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
/jlr
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In re Baby Boy W.
Combined Opinion