       [Cite as In re R.B., 2019-Ohio-3469.]

                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




IN RE: R.B., E.B., M.B., D.B.                  :    APPEAL NOS. C-190319
                                                                C-190331
                                               :    TRIAL NO. F08-0417Z

                                               :       O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 28, 2019



Anzelmo Law and James A. Anzelmo, for Appellant Mother,

Phyllis Schiff, In re Williams Attorney for D.B.,

Roberta Barbanel, In re Williams Attorney for M.B., E.B., and R.B.,

Mark Fidler, for C.S., Father of D.B.,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nick Gramke,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Geoffrey W. Pittman, Attorney Guardian ad Litem for D.B.,

Raymond T. Faller, Hamilton County Public Defender, and Megan Bussam,
Assistant Public Defender, Appellee Guardian ad Litem for M.B., E.B., and R.B.
                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}    Mother and her son, D.B., each appeal from a judgment of the

Hamilton County Juvenile Court that terminated mother’s parental rights and placed

D.B., along with his half-siblings M.B., E.B., and R.B., in the permanent custody of

the Hamilton County Department of Job and Family Services (“HCJFS”). For the

reasons that follow, we affirm the juvenile court’s judgment.

                       I. Background and Procedural History

       {¶2}    As relevant to this appeal, mother is the biological mother of D.B.,

M.B., E.B., and R.B. (collectively, the “B-B children”). C.S. is the father of D.B, while

R.B. is the father of M.B., E.B., and R.B. Mother remains married to R.B., but she

and the children have had no contact with him, and he does not provide child

support.

       {¶3}    HCJFS opened a case against mother in December 2014 after receiving

allegations that her children were living in hazardous conditions in a dirty home

without adequate supervision. In June 2015, HCJFS sought and received interim

custody of the B-B children, and the juvenile court adjudicated them dependent and

neglected. In January 2017, after mother completed her case plan, the children were

returned to her care under orders of protective supervision. The protective orders

were then terminated in March 2017.

       {¶4}    In September 2017, HCJFS again sought interim custody of the B-B

children after receiving allegations that the children were not adequately supervised.

Mother had the children’s grandfather caring for them most of the time, but he could

not control them or stop them from fighting and injuring each other. HCJFS’s

motion for interim custody was held in abeyance pending further hearings.

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         {¶5}   In October 2017, HCJFS filed an emergency order of protection after

receiving allegations that D.B. had raped E.B. HCJFS also sought and received

interim custody of the B-B children. On October 30, 2017, HCJFS filed an amended

complaint for permanent custody of the B-B children.

         {¶6}   Hearings on permanent custody took place before a magistrate in

March, April, July, and October of 2018.          Mother was sequestered from the

courtroom for a portion of the hearings because of a serious medical condition. She

was able to participate instead via videoconference, while her attorney was present in

the courtroom.

         {¶7}   On October 15, 2018, the B-B children were adjudicated dependent

and neglected.     E.B. was also adjudicated abused.       On February 1, 2019, the

magistrate issued a decision, granting permanent custody to HCJFS. Mother and

D.B. filed timely objections to the magistrate’s decision. On April 26, 2019, the

juvenile court overruled the objections, adopted and incorporated the magistrate’s

decision, and granted permanent custody of the B-B children to HCJFS. On appeal,

mother raises three assignments of error, while D.B. raises a single assignment of

error.

         {¶8}   Mother argues that the juvenile court erred in concluding that her

children had been in the care of HCJFS for 12 months of a consecutive 22-month

period, in sequestering her during the permanent custody hearing in violation of her

due process rights, and in finding that clear and convincing evidence supported an

award of permanent custody of her children to HCJFS. In D.B.’s sole assignment of

error, he argues that the juvenile court’s findings with regard to his best interest were

against the weight and sufficiency of the evidence.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                  II. Legal Analysis

       {¶9}   A juvenile court’s determination on a motion for permanent custody

must be supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton

Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. Clear and convincing evidence

has been defined as evidence sufficient to “produce in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” In re K.H., 119

Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford,

161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We must

examine the record and determine if the juvenile court had sufficient evidence before

it to satisfy the clear-and-convincing standard. In re W.W. at ¶ 46. We will not

reverse a juvenile court’s decision on appeal where the court “correctly applied the

best-interests test and where its custody decision was amply supported by competent

evidence in the record.” In re Allah, 1st Dist. Hamilton No. C-040239, 2005-Ohio-

1182, ¶ 11.

                                A. Permanent Custody

       {¶10} Ohio law provides two ways an agency may obtain permanent custody

of a child. The agency may first obtain temporary custody of the child and then file a

motion for permanent custody, or the agency may request permanent custody as part

of its original abuse, neglect, or dependency complaint. See R.C. 2151.413, R.C.

2151.27(C) and R.C. 2151.353(A)(4); see also In re E.P., 12th Dist. Fayette No.

CA2009-11-022, 2010-Ohio-2761, ¶ 22. In this case, HCJFS filed for permanent

custody as part of an original complaint.

       {¶11} In order to grant permanent custody as part of an original disposition,

a juvenile court must apply a two-pronged test. First, the court must determine that

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                      OHIO FIRST DISTRICT COURT OF APPEALS



the child cannot be placed with either parent within a reasonable time or should not

be placed with either parent using the factors in R.C. 2151.414(E). Second, the court

must determine that permanent custody is in the best interest of the child, using the

factors in R.C. 2151.414(D). R.C. 2151.353(A)(4); see In re T.K.K., 12th Dist. Butler

No. CA2012-01-008, 2012-Ohio-3203, ¶ 22.

       {¶12} Under the first prong, the agency is not required to demonstrate that

the children have been in the temporary custody of one or more public children-

services agencies or private child-placing agencies for 12 or more months of a

consecutive 22-month period, as provided under the so-called “12 of 22” provision.

In a request for permanent custody as part of an original complaint, the “12 of 22”

provision is only relevant under the second prong when considering the best

interests of the children.

                         First Prong: Cannot or Should Not

       {¶13} In her first assignment of error, mother argues that the judgment must

be reversed because the juvenile court based its grant of permanent custody on an

erroneous calculation of the “12 of 22” provision. HCJFS argues that while the court

was incorrect in its calculation, the matter is irrelevant, because the provision does

not apply to an original disposition for permanent custody and is not outcome-

determinative, when the court also entered a finding that the B-B children could not

be placed in the custody of a parent within a reasonable time or should not be

returned to a parent. We agree with HCJFS.

       {¶14} While it is true that the juvenile court erroneously applied the “12 of

22” provision, the error is not outcome-determinative because the juvenile court also

found—using the factors in R.C. 2151.414(E)—that the B-B children could not and

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                     OHIO FIRST DISTRICT COURT OF APPEALS



should not be placed with either parent. See In re A.M., 1st Dist. Hamilton No. C-

190027, 2019-Ohio-2028, ¶ 19, citing In re J.D., 8th Dist. Cuyahoga No. 106826,

2018-Ohio-4118, ¶ 34 (holding that error in the 12-of-22 determination was not

outcome-determinative when the trial court made an alternate R.C. 2151.414(B)(1)(a)

determination).

        {¶15} As to mother, the juvenile court found under R.C. 2151.414(E)(1) that

mother had failed continuously and repeatedly to substantially remedy the

conditions causing the children to be placed outside the home, and under R.C.

2151.414(E)(2) that mother had chronic mental illness, chronic emotional illness,

intellectual disability, physical disability, or chemical dependency so severe that it

made her unable to provide an adequate permanent home for the children at the

present time.

        {¶16} The juvenile court found that the B-B children had previously been

removed due to concerns over the deplorable conditions of their home and a lack of

adequate supervision. To assist mother in remedying these problems, HCJFS offered

cash assistance, daycare, an intensive in-home family reunification service, and

homemaking services. However, the juvenile court found that mother’s involvement

in case-plan services had not eliminated the concerns regarding the children’s safety

and welfare. Additionally, mother refused to report any information regarding her

employment or income, and she refused to engage in mental health and substance

abuse treatment.

        {¶17} The juvenile court found that the B-B children had serious emotional

and behavioral needs related to their trauma that mother could not satisfactorily

meet.   The court also found that the children required stability, structure, and

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                      OHIO FIRST DISTRICT COURT OF APPEALS



security, which mother could not provide in a reasonable period of time. Major

concerns indicated by the magistrate included mother’s failure to appreciate the

magnitude of her children’s mental-health issues, mother’s refusal to believe E.B.’s

report of being raped by D.B., and mother’s blame of E.B. for the removal of mother’s

children from her care. Specifically, the magistrate found,

       All of the B-B children are presently receiving mental health

       treatment.    E.B., M.B., and R.B. [have been] diagnosed with post

       traumatic stress disorder (PTSD) and attention deficit hyperactivity

       disorder (ADHD). E.B. deals with depression. E.B. and M.B. struggle

       with anxiety. R.B. has a conduct disorder that encompasses fits and

       tantrums. He also steals. One symptom to R.B.’s PTSD is encopresis.

       D.B. is has been diagnosed with oppositional defiance disorder (ODD),

       and has displayed sociopathic tendencies.      D.B. sexually abused a

       resident of the group home where he was placed after being removed

       from his home for sexually abusing his sister, E.B. E.B. reported that

       R.B. had also been sexually abused by D.B.

       {¶18} The magistrate also noted that mother had required frequent

redirection during her supervised visits with the children. Mother’s last visit with

E.B., M.B., and R.B. was in May 2018, following a therapeutic recommendation to

terminate her visitation. During visits, mother showed E.B. pictures of D.B., and

thereafter E.B. did not want to visit with her.

       {¶19} Mother had visits with D.B. at a separate facility until her health issues

prevented it. She went several months without visiting D.B. To that point, the

magistrate found that mother had serious physical challenges which could negatively

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                     OHIO FIRST DISTRICT COURT OF APPEALS



impact her ability to care for her children. Mother was placed in a nursing home for

months during the pendency of the case, and she needed the assistance of a

wheelchair for court appearances. Mother reported that she was currently living in

her three-bedroom mobile home and was struggling financially. She indicated that

she was storing her household garbage in her shed because she could not afford the

fees to have her trash removed.

       {¶20} Following our review of the record, we find that the evidence, taken as

a whole, supports the juvenile court’s finding under R.C. 2151.414(E)(1) and (E)(2) as

to mother.

       {¶21} As to the fathers, the juvenile court found under R.C. 2151.414(E)(10)

and (E)(4) that both fathers had abandoned their children and had demonstrated a

lack of commitment toward reunification. With regard to the fathers’ abandonment

and lack of commitment, the juvenile court found,

       [R.B.] has had no involvement with the children, or HCJFS, since

       2016. [R.B] has not financially supported his children, and is not a

       viable placement for them.

       [C.S.] is not involved with D.B.        [C.S.] is a Tier 1 registered sex

       offender, having been convicted of sexual imposition in 2015. At the

       time of the hearing, [C.S.] was on probation for failing to properly

       verify his address. [C.S.] has not demonstrated an ability to meet

       [D.B.’s] needs, or a willingness to care for him.

Additionally, C.S. indicated through his attorney that he was in agreement with

HCJFS’s complaint for permanent custody of D.B. We, therefore, hold that the trial




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                      OHIO FIRST DISTRICT COURT OF APPEALS



court’s findings under R.C. 2151.414(E)(10) and (E)(4) as to both fathers was

supported by clear and convincing evidence.

       {¶22} Because the juvenile court’s finding that the children could not or

should not be placed with either parent was supported by clear and convincing

evidence, we overrule mother’s first assignment of error.

                            Second Prong: Best Interest

       {¶23} We must next determine whether the court correctly determined the

best interests of the children using the factors in R.C. 2151.414(D). The juvenile

court determined that it was in the children’s best interests to be placed in the

permanent custody of HCJFS.         In determining the best interest of a child, the

juvenile court must consider all relevant factors, including, but not limited to, those

expressly set forth in R.C. 2151.414(D)(1).

       {¶24} The factors include (a) “[t]he interaction and interrelationship of the

child with the child’s parents, siblings, relatives, foster caregivers and out-of-home

providers,” (b) “[t]he wishes of the child,” (c) “[t]he custodial history of the child,”

(d) “[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 (e) “[w]hether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

       {¶25} In considering the best-interest factors, the juvenile court found that

E.B., M.B., and R.B. had not visited with mother in several months and had no desire

to return to her. Mother repeatedly told E.B. that she was to blame for their removal

from her care, and mother displayed pictures of D.B. to E.B. despite the fact that it

upset E.B. Mother sometimes claimed that she believed E.B. regarding the rape, but

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                     OHIO FIRST DISTRICT COURT OF APPEALS



other times characterized E.B.’s allegations as “confusion”—this is despite D.B.

having admitted to raping E.B. and to raping his brother R.B. under similar

circumstances.

       {¶26} E.B., M.B., and R.B. were placed with a family friend and wished to

remain in her care. The family friend expressed a desire to adopt them. E.B., M.B.,

and R.B. do not want any involvement with their half-brother, D.B. D.B. is in

residential treatment, and HCJFS indicated that they would not place D.B. with his

half-siblings.   The guardian ad litem for E.B., M.B., and R.B. supported the

commitment of permanent custody to HCJFS and indicated that they have spent the

majority of the last five years in the custody of HCJFS.

       {¶27} The guardian ad litem for D.B. also supported a commitment of

permanent custody to HCJFS and indicated likewise that D.B. had been in the

custody of HCJFS for 44 of the most recent 53 months. The guardian ad litem also

noted that permanency for D.B. could only be achieved through out-of-home

placement in a treatment facility due to his sexual predation and dysfunction and

other diagnoses.

       {¶28} The juvenile court found that the fathers, R.B. and C.S., had gone for

extraordinary periods of time with no contact with their respective children and had

legally abandoned them.     The magistrate noted that the fathers have shown no

interest in their children through their lack of engagement with HCJFS. And, as

mentioned above, C.S. indicated through his attorney that he supported an award of

permanent custody of D.B. to HCJFS.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶29} Finally, the court determined that the children needed a legally secure

and safe placement and concluded that this type of placement could only be achieved

through a grant of permanent custody to HCJFS.

       {¶30} We find that the juvenile court correctly applied the best-interest test

of the second prong of permanent custody as it applied to both fathers and mother.

We therefore overrule D.B.’s sole assignment of error.

                            B. Sequestration of Mother

       {¶31} In her second assignment of error, mother argues that the juvenile

court erred by sequestering her during the permanent-custody hearing in violation of

her right to due process under the Fourteenth Amendment to the United States

Constitution and Section 16, Article I, of the Ohio Constitution. We disagree.

       {¶32} Mother was sequestered from the courtroom for a portion of the

permanent-custody hearing because of a serious medical condition. She was infected

with MRSA, and two of the attorneys taking part in the proceedings were

immunocompromised. Mother was able to participate instead via videoconference,

while her attorney was present in the courtroom. She was able to return to the

courtroom after receiving treatment.

       {¶33} Ohio courts have applied a balancing test to determine whether a

parent’s due-process rights are violated when the court proceeds with a hearing on a

permanent-custody motion without the parent’s presence.          Specifically, a court

should balance the factors established in Mathews v. Eldridge, 424 U.S. 319, 335, 96

S.Ct. 893, 47 L.Ed.2d 18 (1976): “(1) the private interest affected, (2) the risk of

erroneous deprivation and the probable value of additional safeguards, and (3) the

governmental burden of additional procedural safeguards.” In re D.P., 8th Dist.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Cuyahoga No. 86271, 2006-Ohio-937, ¶ 22, quoting In re Sprague, 113 Ohio App.3d

274, 276, 680 N.E.2d 1041 (1996).

       {¶34} In this case, the private interest affected by the permanent-custody

hearing is mother’s “essential” and “basic” civil right to raise her children. In re

Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). “A parent’s fundamental liberty

interest in the care, custody and management of a child does not evaporate simply

because the parent has not been a model parent or lost temporary custody of their

child to the state.” (Internal quotations omitted.) In re I.B.L., 4th Dist. Washington

No. 14CA19, 2014-Ohio-4666, ¶ 14.

       {¶35} Second, the risk of an erroneous deprivation of mother’s fundamental

liberty interest in the care, custody, and management of her children by holding the

permanent-custody hearing in her physical absence while enabling her to participate

via videoconference appears low.       Mother’s counsel fully participated in the

permanent custody hearing and represented her interest. See In re I.B.L. at ¶ 15; see

also State ex rel. Vanderlaan v. Pollex, 96 Ohio App.3d 235, 237, 644 N.E.2d 1073

(6th Dist.1994) (holding that mother, who was incarcerated during the permanent-

custody hearing, did not have an absolute right to attend when her basic rights were

protected by her attorney). Additionally, the juvenile court allowed mother to return

to the hearing once she had received treatment and was no longer a danger to those

in the courtroom who were immunocompromised. Thus, mother had an opportunity

to present her version of events and to cross-examine witnesses at the hearing.

       {¶36} In considering the state’s interest, we identified “[t]wo state interests

[that] are at stake in a permanent custody proceeding—a parens patriae interest in

preserving and promoting the welfare of the child and a fiscal and administrative

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                       OHIO FIRST DISTRICT COURT OF APPEALS



interest in reducing the cost and burden of such proceedings.” In re I.B.L. at ¶ 14,

citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Permitting mother to be physically present for the entirety of the hearing would have

been the optimal arrangement.        However, allowing some other means of her

participation clearly served the state’s and children’s interests, and it did not impose

any undue fiscal or administrative burden upon the state.

       {¶37} Consequently, a balancing of the Mathews factors shows that the

juvenile court did not deprive mother of her due-process rights by sequestering her

for a portion of the permanent-custody hearing. Counsel meaningfully represented

mother at the hearing during her physical absence, a complete record was made, and

mother has failed to show how her physical presence would have changed the

outcome of the case.

       {¶38} Accordingly, based upon the foregoing reasons, we overrule mother’s

second assignment of error.

                                     Conclusion

       {¶39} There is clear and convincing evidence in the record to support the

juvenile court’s decision to grant permanent custody of the B-B children to HCJFS.

Therefore, we overrule mother’s and D.B.’s assignments of error and affirm the

judgment of the juvenile court.

                                                                    Judgment affirmed.

MOCK, P.J., and CROUSE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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