The opinion
[Cite as In re M.B., 2017-Ohio-7293.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: M.B. : OPINION
:
CASE NO. 2017-A-0024
:
Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case
No. 2013 JC 00075.
Judgment: Affirmed.
Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Appellant, Rachel
Smithers).
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092; and Margaret A. Draper, Assistant Prosecutor, ACCSB, 3914 C Court,
Ashtabula, OH 44004 (For Appellee, Ashtabula County Children Services Board).
Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor,
OH 44060 (Guardian ad litem).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Rachel Smithers, biological mother of M.B., appeals from the
judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting
the Ashtabula County Children Services Board (“ACCSB”), appellee herein, permanent
custody of the child. We affirm.
{¶2} M.B. was born on May 3, 2011, to her biological parents, appellant, and
Colton Bond, who were unmarried and resided in the Commonwealth of Pennsylvania.
ACCSB became involved with M.B. upon appellant’s arrest for child endangering and
drug paraphernalia in Ashtabula County, Ohio. On September 15, 2013, an ex parte
emergency order was granted placing M.B. in the temporary custody of ACCSB. The
following day, ACCSB filed a complaint for temporary custody, alleging that the child
was neglected and dependent. An emergency shelter-care hearing was held and the
court found probable cause for M.B.’s removal, to wit: “Mom was stopped for speeding
and a large amount of morphine was found in the vehicle. At the time, it was unclear if
the child had ingested any of the drug and she was taken to the hospital. Mom was
clearly under the influence and could not give any information regarding the child or any
relatives who may be able to care for the child.” 1
{¶3} An adjudicatory hearing was held on October 7, 2013 with respect to
appellant; appellant’s counsel stipulated she was incarcerated in the Ashtabula City Jail
at the time the complaint was filed and subsequently incarcerated in Crawford County,
Pennsylvania at the time of the hearing. The record is not entirely clear as to what
crime prompted the Pennsylvania incarceration but, given the sequence of events,
appellant apparently had charges pending in the Commonwealth prior to her arrest in
Ohio. The court accordingly concluded the child was neglected as alleged.
{¶4} The matter proceeded to a disposition hearing on December 2, 2013, at
which ACCSB presented evidence that it was awaiting a home study of a maternal
uncle in Pennsylvania who had visited the child one time; M.B. remained in foster care
while appellant remained incarcerated. A case plan was adopted and the child
remained in the temporary custody of ACCSB.
1. Father was also in the vehicle; he was arrested and also incarcerated. He did not participate in the
underlying proceedings and has surrendered his parental rights.
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{¶5} On March 17, 2014, a semi-annual review hearing was held. The
magistrate ultimately found appellant remained incarcerated and that M.B. was doing
fine in the foster home. Due to her incarceration, there was no evidence that appellant
had complied with the case plan.
{¶6} On September 12, 2014, ACCSB filed a motion for review, noting the
sunset day for extension of temporary custody had inadvertently passed on August 16,
2014. In its motion for review, ACCSB requested M.B. be placed in its permanent
custody. The court held an annual review/disposition review hearing on September 22,
2014. During the hearing, the court found the child had no contact with either parent for
a year and that both parents continued to be incarcerated. A permanent custody
hearing was ultimately scheduled for April 2, 2015. Appellant later moved the court to
continue the hearing date for June 8, 2015. The motion was granted.
{¶7} On June 8, 2015, the court held a hearing on ACCSB’s “Motion for
Review/Permanent Custody.” At the hearing, ACCSB indicated an intention to amend
its motion; as such, the court reset the matter for a hearing on all motions for August 10,
2015. On June 9, 2015, ACCSB filed a motion requesting modification of temporary
custody to permanent custody, alleging M.B. had been in temporary custody of ACCSB
for 12 or more months of a consecutive 22-month period; that the child cannot be
placed with either parent within a reasonable time or the child should not be placed with
either parent; and the child is abandoned.
{¶8} The matter came on for hearing on August 10, 2015, but was rescheduled
due to appellant’s inability to leave the Commonwealth of Pennsylvania. The case was
ultimately set for hearing on March 9, 2016. At the hearing, ACCSB caseworker Kathy
Kasputis testified appellant has had no contact with M.B. since September 2013, the
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date ACCSB obtained temporary custody of the child. Ms. Kasputis noted appellant
was incarcerated from September 2013 until November 2015. Appellant did initially
request visitation. The facility in which she was incarcerated, however, declined any
visitation due to a conviction for child endangerment.
{¶9} Ms. Kasputis testified she investigated potential placement options for
M.B., including the child’s paternal grandmother, who was not in a position to care for
the child. Dawn Kinnard, a maternal aunt of the child was willing to assume custody;
however, no interstate home study was requested because, according to Ms. Kasputis,
Ms. Kinnard did not have the stability to assume custody. Similarly, other relatives were
also considered but did not qualify due to their lack of stability. Ms. Kasputis was also in
contact with a family friend, Nancy Knowles, who had cared for M.B. in 2013 while
appellant was working a third-shift job. Ms. Knowles was not considered for placement
because, according to Ms. Kasputis, she failed to file a motion for legal custody after
being advised by a caseworker to do so. At the time of the hearing, no relative or third
party sought to intervene, requested visitation, or moved for legal custody of M.B.
{¶10} Ms. Kasputis testified appellant’s case plan required her to have a drug
and alcohol assessment as well as a mental health assessment, which she completed
through the facility in which she was incarcerated. Mother was also required to
establish housing and the necessary stability for the child. According to Ms. Kasputis,
appellant had made significant progress with her life and case plan. Because of the
relationship M.B. had developed with her foster family, however, Ms. Kasputis
recommended permanent custody be awarded to ACCSB. She opined that M.B.:
{¶11} “is the stablest she’s been in this home in her short life, four years. She
lived in this home two-and-a-half years. Um, I just think it’s in her best interests at this
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point because she knows the foster parents as Mom and Dad. There’s been efforts to
show her pictures of her parents and she doesn’t know who they were, and that was,
like, shortly after she came into care.”
{¶12} At the time of the hearing, M.B. had resided with her foster family for two
and one-half years. The foster parents have stable employment, stable housing, and
intend to adopt.
{¶13} Appellant testified that, during her incarceration, she had completed
multiple programs and achieved significant progress through the Pennsylvania
correctional system. During her incarceration, appellant completed a Leading in Faith &
Education course; received a certificate for completion of a Therapeutic Community
program; completed a boot camp program where she received a Certificate of
Recognition naming her “Most Inspirational;” she also completed the first phase of drug
treatment; and a Trauma, Recovery, and Resilience program. Appellant complied with
conditions of her parole and remained on probation at the time of the hearing. She
testified she has not used illegal substances since her arrest in September 2013.
{¶14} During her incarceration, appellant requested visitation, but was not
granted permission due to her conviction for child endangering. As a resident of a
subsequent treatment program, mother testified she again requested visitation with
M.B.; her request, however, was denied by ACCSB because the facility in which she
was residing was near Harrisburg, Pennsylvania and was therefore too far away.
Appellant acknowledged that she could have selected a facility closer to Ohio, but she
elected treatment near Harrisburg because she had a network of stable family members
near that location. She testified her family and support system helped her remain
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stable. And if she selected a city closer to Ohio, she feared she might be exposed to
conditions that might cause her to relapse.
{¶15} Appellant testified she was not permitted to leave Pennsylvania after her
release in November 2015 due to restrictions of parole. These restrictions, however,
were lifted in February 2016.
{¶16} Appellant testified she has completed all necessary rehabilitation services
and has maintained stability since November 2015. As of the hearing date, in March
2016, she had maintained housing and full-time employment since that date.
{¶17} Hobart Shiflit, the child’s guardian ad litem (“GAL”) testified appellant had
made great strides in her life since her 2013 arrest, both while incarcerated and after
her release. He maintained, however, given the stability M.B. has enjoyed in the
custody of the foster family, that it was in her best interest for permanent custody to be
granted to ACCSB.
{¶18} After the hearing, the magistrate issued her decision. She found M.B. had
been in the custody of ACCSB for more than 12 months of a consecutive 22-month
period. She further noted that, M.B. could not and should not be placed with appellant
within a reasonable time and, further, by appellant’s failure to maintain contact for more
than 90 days, M.B. was abandoned. The court further determined, after considering all
necessary factors, that awarding permanent custody to ACCSB was in the child’s best
interest. Appellant duly objected to the magistrate’s decision. A hearing on the
objections was held and, on March 29, 2017, the trial court overruled the objections and
adopted the magistrate’s decision. This appeal follows.
{¶19} Appellant assigns three errors for our consideration. Her first assignment
of error provides:
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{¶20} “The Ashtabula County Children’s Services Board failed to meet the
requirements of Ohio Revised Code Section 2151.414(B)(1)(d), in that the request for
permanent custody was first made in their motion for review, filed in 2014, which was
untimely, and the trial court erred to the prejudice of the mother by granting permanent
custody, as the statutory time requirements were not met.”
{¶21} Under this assignment of error, appellant asserts ACCSB filed their first
motion for permanent custody via a “motion to review,” filed on September 12, 2014.
The motion for review indicated ACCSB inadvertently missed the sunset date to extend
temporary custody and sought a full evidentiary hearing on M.B.’s best interests as it
related to ACCSB’s temporary custody. Appellant points out, however, this motion was
filed prior to the one-year statutory window that enables an agency to file a motion for
permanent custody. In this case, it would appear that window would have been October
7, 2014, i.e., one year after the child was adjudicated neglected. See R.C.
2151.414(B)(1)(e) (“[f]or the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the earlier of the
date the child is adjudicated pursuant to section 2151.28 of the Revised Code * * *.”)
Accordingly, appellant argues, ACCSB prematurely sought to terminate her parental
rights and therefore she was denied both the substantive and procedural protections
afforded her under the law.
{¶22} While appellant is correct that the September 12, 2014 motion for review
was premature, to the extent it sought to terminate her parental rights, the error was
harmless as a matter of law. The hearing was continued and, on June 9, 2015, ACCSB
filed an amended motion seeking permanent custody asserting, inter alia, M.B. had
been in the temporary custody for more than 12 months of a consecutive 22-month
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period. The amended motion, which was filed well beyond the 12-month statutory
window, effectively supplanted the premature motion. Thus, because the motion was
amended after the statutory time had passed, any error in ACCSB’s original filing is
harmless.
{¶23} Appellant’s first assignment of error lacks merit.
{¶24} Appellant’s second and third assignments of error shall be addressed
together; they provide:
{¶25} “[2.] The juvenile court erred to the prejudice of mother by finding that the
child had been abandoned, as the state did not prove by clear and convincing evidence
that the parents had abandoned the child.
{¶26} “[3.] The decision to award permanent custody was against the manifest
weight of the evidence.”
{¶27} Under her second assigned error, appellant asserts her incarceration
prevented her from contacting M.B. and she was not permitted to leave the
Commonwealth of Pennsylvania until February of 2016. Because her inability to contact
M.B. was not a product of her personal volition, she maintains it was improper to find
she abandoned the child. Under her third assignment of error, she challenges the
weight of the evidence supporting the trial court’s ultimate conclusion to terminate her
parental rights.
{¶28} “[P]arents who are suitable persons have a ‘paramount’ right to the
custody of their minor children.” (Citations omitted.) In re Murray, 52 Ohio St.3d 155,
157 (1990). “The fundamental interest of parents is not absolute, however.” In re D.A.,
113 Ohio St.3d 88, 2007-Ohio-1105, ¶11. The “extreme disposition” of permanently
terminating parental rights “is nevertheless expressly sanctioned * * * when it is
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necessary for the ‘welfare’ of the child.” In re Cunningham, 59 Ohio St.2d 100, 105
(1979). “[T]he fundamental or primary inquiry at the dispositional phase of these juvenile
proceedings is not whether the parents * * * are either fit or unfit,” rather, it is “the best
interests and welfare of that child [that] are of paramount importance.” (Emphasis sic.)
Id. at 106.
{¶29} The trial court must apply R.C. 2151.414(B) to determine the outcome of
a motion for permanent custody. The statute provides, in pertinent part:
{¶30} (B)(1) Except as provided in division (B)(2) of this section, the court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this
section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to the
agency that filed the motion for permanent custody and that any of
the following apply:
{¶31} * * *
{¶32} (b) The child is abandoned.
{¶33} “* * *
{¶34} (d) 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 * * *.
{¶35} Once the juvenile court determines that one of the circumstances listed in
R.C. 2151.414(B)(1)(a) through (d) is present, “then the court proceeds to an analysis of
the child’s best interest.” In re T.B., 11th Dist. Lake No.2008-L-055, 2008-Ohio-4415,
¶34. “In determining the best interest of a child * * *, the court shall consider all relevant
factors, including, but not limited to, * * * [t]he 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; * * * [t]he wishes
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of the child * * *; [t]he custodial history of the child * * *; [t]he 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 whether any relevant factors
in (E)(7) to (11) of this section apply. R.C. 2151.414(D)(1)(a)-(e).
{¶36} The trial court’s determination regarding the best-interest issue must be
supported by clear and convincing evidence, which is “more than a mere
preponderance of the evidence; it is evidence sufficient to produce in the mind of the
trier of fact a firm belief or conviction as to the facts sought to be established.” In re
Krems, 11th Dist. Geauga No.2003-G-2535, 2004-Ohio-2449, ¶36, citing In re Holcomb,
18 Ohio St.3d 361, 368 (1985).
{¶37} In cases involving the termination of parental rights, an appellate court
applies the civil manifest weight of the evidence standard of review. In re D.H, 11th Dist.
Geauga No.2007-G-2759, 2007-Ohio-3337, ¶20-21. “Judgments supported by some
competent, credible evidence going to all the essential elements of the case will not be
reversed by a reviewing court as being against the manifest weight of the evidence.”
C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.
{¶38} Preliminarily, although the magistrate concluded M.B. was abandoned,
this was not the sole factor upon which it relied to meet the preliminary prong of the
termination test. To the contrary, it primarily found that M.B. had been in the custody of
ACCSB for 12 months of a consecutive 22-month period. This finding was supported by
the record because, at the time of the amended motion, i.e., June 9, 2015, the child had
been in the temporary custody for well over the 12-month statutory period.
Accordingly, the court’s finding on “12 of 22” factor was sufficient to trigger the court’s
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best-interest analysis. In this respect, appellant’s argument that she did not abandon
M.B. is moot.
{¶39} Even if the argument was not moot, however, the record demonstrates
that, despite her incarceration and inability to leave Pennsylvania, appellant had no
actual contact with M.B. since her arrest. Even though appellant was not permitted to
leave the state after her release in November 2015, the record fails to demonstrate she
tried to call or write M.B. or, alternatively, attempted to call or write ACCSB or the GAL
to arrange some way of communicating with the child.
{¶40} R.C. 2151.011(C) provides: “a child shall be presumed abandoned when
the parents of the child have failed to visit or maintain contact with the child for more
than ninety days, regardless of whether the parents resume contact with the child after
that period of ninety days.” Appellant sought some form of visitation while incarcerated,
but was prevented from contact due to her child endangerment conviction. Given her
request, it would appear she did not wish to relinquish contact with the child, but was
forbidden contact by outside conditions. Still, after her release from incarceration, it
would appear she could have made some effort to have contact with M.B., even if that
contact was by means of a phone or writing. And, even though Ms. Kasputis testified
appellant maintained contact with ACCSB, again demonstrating she did not wish to
relinquish contact, Ms. Kasputis did not testify appellant actually sought a means to
engage the child. Hence, the finding of abandonment was supported by clear and
convincing evidence.
{¶41} Next, appellant maintains the weight of the evidence does not support the
magistrate’s conclusion granting ACCSB’s motion for permanent custody. Appellant
underscores she completed her case-plan goals and has been sober for over two years.
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She maintains her inability to visit and engage with M.B. was not a result of her
unwillingness to do so, but, rather, was due to conditions resulting from her
incarceration. Appellant observes there was substantial evidence that she is, and has
been for some time, stable, employed, and sober. Appellant recognizes that M.B.’s
stability and bonds with her foster parents should not be overlooked. She contends,
however, ACCSB and its caseworkers failed to reach out to her and afford her the
opportunity to have contact and ultimately reunify with the child.
{¶42} We acknowledge, as did Ms. Kasputis and the GAL, Mr. Shiflit, appellant
has done well to stabilize herself and change her life for the better. Still, a parent’s right
to raise his or her child is subordinate to the child’s best interest. Miller v. Miller, 37 Ohio
St.3d 71, 75 (1988). Indeed, “a court shall not consider the effect the granting of
permanent custody to the agency would have upon any parent of the child.” R.C.
2151.414(C). Even though appellant may be suitable for visitation at this point, this
does not change the fact that, under the circumstances of this case, M.B.’s best
interests are served by granting ACCSB permanent custody.
{¶43} M.B. has integrated into her foster home where she has developed very
close ties with the foster parents as well as the foster siblings. Alternatively, there was
no evidence indicating any bond between appellant and M.B.; indeed, the evidence
demonstrated that M.B. would not even recognize appellant if she had contact with the
child. According to the GAL, M.B. requires a legally secure and permanent placement.
Given the circumstances, including, and perhaps most importantly, the duration in which
appellant has had no contact with M.B., we hold the magistrate did not err in concluding
that placement could not be achieved within a reasonable time without an award of
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permanent custody. The trial court did not abuse its discretion in adopting the
magistrate’s recommendation to grant permanent custody to ACCSB.
{¶44} Appellant’s second and third assignments of error lack merit.
{¶45} For the reasons discussed in this opinion, the judgment of the Ashtabula
County Court of Common Pleas, Juvenile Division, is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
_____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶46} I respectfully dissent.
{¶47} The law presumes it is in the best interests of a child to be raised by his or
her natural parents. In re Hughes, 9th Dist. Wayne No. 1759, 1982 WL 2875, *3 (Jan.
20, 1982) (“there is a strong presumption that it is in the child’s best interests to be
raised by its natural parents”); In re Mullens, 1st Dist. Hamilton No. C-790315, 1980 WL
352882, *2 (April 2, 1980) (there is “a strong tendency in our law to find the child’s best
interests lies in staying with a natural parent”); see also In re Marriage of Barber, 8 Ohio
App.3d 372, 375 (8th Dist.1983) (“it is in the best interests of children that they continue
to know, love, and respect their natural parents”).
{¶48} With respect to the issue of M.B.’s best interest, the caseworker, Ms.
Kasputis and the GAL, Mr. Shiflit, each testified that appellant has done well to stabilize
herself and change her life for the better. These points were underscored even by the
magistrate in her decision. Still the magistrate observed:
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{¶49} “As reflected in the testimony of Caseworker Kasputis and Mother as well
as the reports of the Guardian ad litem, Mother had the best intentions and made
significant efforts to rehabilitate herself throughout these proceedings. Ms. Smithers,
however, was not available to provide care for the child prior to the filing of the
Permanent Custody motion and remained unavailable and without contact with the child
due to parole conditions that prevented her from leaving the Commonwealth of
Pennsylvania through February 2016.”
{¶50} In In re C.S., 9th Dist. Summit No. 25344, 2010-Ohio-4463, the Ninth
Appellate District reversed the trial court’s decision granting permanent custody of a
child to the Summit County Children Services Board and terminating the mother’s
parental rights because the decision was against the manifest weight of the evidence.
This court reasoned that because the mother was not permitted to visit with her child for
nearly 18 months before the permanent custody hearing, evidence of the relationship
between the mother and child was distorted and could not be meaningfully measured.
Id. at ¶44, 55.
{¶51} In this case, Ms. Kasputis testified appellant had made progress with or
completed her case plan objectives. She further stated that, regarding contact with
appellant, that “[appellant] has been good. She sends letters, she calls when she was
in the institutions. Or a case manager would call.” To be sure, appellant did not have
any meaningful contact or visitation with M.B. Nevertheless, Ms. Kasputis’ testimony
indicates she kept in contact with ACCSB, and vice versa.
{¶52} ACCSB highlights appellant’s failure to make an effort to keep contact with
M.B., especially since February 2016, when she was permitted to leave Pennsylvania.
While it is puzzling that appellant did not make a more assertive or obvious attempt to
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contact M.B., this omission, particularly before February 2016, was due, in large part, to
restrictions on appellant’s freedom that were beyond her control. Moreover, at the time
of the hearing, in March 2016, she had only been permitted to leave Pennsylvania for
approximately one month. In C.S., supra, the court aptly observed: “Regardless of the
reasons for the lack of visitation, the result is that Mother and C.S. did not have a
meaningful process by which the question of permanent custody could be determined.”
Id. at ¶55.
{¶53} Similar to the court in C.S., we should carefully review the context of
appellant’s lack of contact. Appellant had been unable to visit M.B. for almost the
entirety of M.B.’s involvement with ACCSB. And even though appellant did not attempt
to directly contact M.B., Ms. Kasputis testified appellant maintained contact with ACCSB
thereby demonstrating an active interest or hope in reunification. While her inability to
visit was a result of her previous poor decision making, all witnesses agreed that she
has changed her life’s direction in a way that would clearly be appropriate for visitation.
{¶54} While there had been no visitation and/or contact between appellant and
M.B. since September 2013, this evidence is explainable and cannot be viewed in a
vacuum. The mere fact that appellant had no contact does not effectively inform the
inquiry of her relationship with M.B. In this respect, the evidence of appellant’s and
M.B.’s lack of relationship, without reference to other factors, distorts the analysis
because, in short, appellant’s and M.B.’s relationship cannot be meaningfully measured
without some interaction.
{¶55} ACCSB emphasizes that, in selecting a treatment facility, appellant
elected to move farther from M.B., to Harrisburg, rather than closer, near Pittsburgh.
ACCSB, however, does not mention that appellant did so because she felt the
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Harrisburg area afforded her a greater family-support network for her to continue in her
recovery. Appellant testified, had she moved closer to Pittsburgh, she would lack the
structure and support that had assisted her in obtaining sobriety and stability.
Appellant’s reason for not moving closer was, upon closer inspection, laudatory: She
did not want regress and relapse into the lifestyle that separated her from M.B. in the
first place.
{¶56} This writer recognizes that M.B. has integrated into her foster home where
she has developed very close ties with the foster parents as well as the foster siblings.
Alternatively, there was no evidence indicating any bond between appellant and M.B.;
indeed, the evidence indicated that M.B. would not even recognize appellant if she had
contact with the child. Still, this writer notes that we have no evidence of how M.B.
would interact with appellant and whether appellant could rebuild a relationship with her
daughter. To sever appellant’s rights, in light of her diligent compliance with her case
plan and its goals, would forsake her “fundamental interest” in the custody of M.B.
Additional time should be granted to establish whether, regardless of M.B.’s bond and
ties to her foster family, it is in M.B.’s best interest to grant ACCSB’s motion to terminate
appellant’s parental rights.
{¶57} In light of the evidence that appellant has effectively distanced herself
from the conditions that caused her separation from M.B., that she has met most or all
of her case plan goals, and is now capable of commencing a visitation routine that
would allow her to reconnect with M.B., this writer strongly feels that the decision
granting ACCSB permanent custody is against the weight of the evidence.
{¶58} I respectfully dissent.
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