IN RE: R.B., et al.
CASE NO. CA2022-01-003 CA2022-01-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/23/2022
2022-Ohio-1705
S. POWELL, J.
[Cite as In re R.B., 2022-Ohio-1705.] APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. JN2018-0089; JN2018-0090
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.
OPINION
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.
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
{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 BCDJFS 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
{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-
{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.
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
{11} “Former
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
{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
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.
{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
{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
{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,
{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 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
{19} “[A] dependency adjudication followed by a disposition awarding or continuing
{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
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
{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.”
{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,
{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
{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
{31} Pursuant to
{32} When considering the best interest of a child in a permanent custody case, the juvenile court is required under
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 BCDJFS 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
{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., 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
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.
Notes
- 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. - 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.