[Cite as Spears v. Bush, 2010-Ohio-3547.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




BRITTANY SPEARS,

        PLAINTIFF-APPELLANT,                             CASE NO. 9-10-05

        v.

ERIC BUSH, ET AL.,
                                                         OPINION
        DEFENDANTS-APPELLEES.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2009-CV-0325

                                     Judgment Affirmed

                            Date of Decision: August 2, 2010




APPEARANCES:

        Charles R. Hall, Jr. and David K. Goodin for Appellant

        J. Stephen Teetor and Jessica K. Philemond for Appellees
Case No. 9-10-05


PRESTON, J.

          {¶1} Plaintiff-appellant, Brittney Spears (hereinafter “Spears”), appeals

the Marion County Court of Common Pleas’ judgment dismissing her civil

complaint against defendant-appellees, Eric Bush, Executive Director of Marion

County Children’s Services Board, in his official and individual capacities,

(hereinafter “Bush”), Marion County Children’s Services Board (hereinafter

“MCCSB”), and Marion County Children’s Services Board, in their official and

individual capacities (collectively “defendants”). For the reasons that follow, we

affirm.

          {¶2} The facts of the underlying child custody case are familiar to this

Court as that case has twice been heard on appeal. In re D.H., 3d Dist. No. 9-06-

57, 2007-Ohio-1762; In re D.H., 3d Dist. No. 9-08-01, 2008-Ohio-4304. The

basic facts gleaned from our prior cases are these.

          {¶3} On July 21, 2003, sixteen-year-old Spears gave birth to D.H. D.H.’s

father is Brandon H. On February 7, 2004, Spears and D.H. were removed from

Spears’ home and placed into the same foster home in Piqua, Ohio until July 2004

when they were transferred into the Rostorfer’s foster home in Marion.

          {¶4} On September 16, 2004, MCCSB filed a complaint alleging that

both Spears and D.H. were dependent and neglected children. On November 23,

2004, a pretrial hearing was held wherein the parties stipulated that Spears and



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D.H. were dependent. On September 27, 2004, a case plan was approved, which

required that Spears: attend school, refrain from illegal substances, obtain mental

health counseling, and obtain employment.

      {¶5} Between May and August 2005, the parental rights of Spears’

mother were terminated. During this same time, a case worker, Ms. Umoh, noted

that Spears was doing well and could receive custody of D.H. in September 2005,

but this date was revised because Spears could not find suitable housing.

      {¶6} On August 24, 2005, Spears was emancipated and moved out of the

Rostorfer foster home to live in the Fairview Apartments in Marion, Ohio. Spears

subsequently moved in with her boyfriend at 284 Windsor Street in Marion, Ohio.

      {¶7} Shortly after her emancipation Spears’ mentor, Ms. Dale, alleged to

MCCSB that Spears was having alcohol parties in her apartment. As a result of

Dale’s allegations, on September 26, 2005, MCCSB installed a new case plan

revoking Spears’ unsupervised visits with D.H. and replacing these with

supervised visits. After that, Spears regressed rapidly. She lost her job, dropped

out of school, pled to two (2) underage consumption charges (10/18/05 &

11/21/05), and pled to two (2) charges of obstructing official business in which it

was alleged that she had not allowed police into her apartment.

      {¶8} On January 19, 2006, MCCSB filed a motion for permanent custody

of D.H. pursuant to R.C. 2151.413. On May 1 and July 6, 2006, hearings were



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held on the motion with both parents appearing with counsel. MCCSB presented

seven (7) witnesses; Spears, Brandon, and Spears’ mother also testified.

      {¶9} On July 28, 2006, the GAL submitted an eighteen (18)-page report

recommending that Spears be given another opportunity and that the motion for

permanent custody be denied.

      {¶10} On September 21, 2006, trial court granted MCCSB’s motion for

permanent custody. On October 19, 2006, Spears and Brandon both appealed.

      {¶11} On April 16, 2007, this Court reversed finding that the trial court did

not address all of the R.C. 2151.414(D) factors, namely (1), (2), and (4), and that

the trial court did not give any reason(s) for disregarding the GAL report. In re

D.H., 2007-Ohio-1762. On that same day, Spears filed a motion for modification

of custody indicating that she would like to visit D.H. On July 19, 2007, the trial

court set the matter for pretrial on July 25, 2007, but the record contains no

information as to what happened at the pretrial.        What is clear is that no

modification order was ever issued.

      {¶12} On August 10, 2007, GAL Diequez filed a report noting that he had

visited Spears’ home on August 2, 2007. Diequez noted the following in his

report: Spears was living in a home owned by Oney, the father of Spears’ second

child, E.O., rent free in lieu of child support for E.O.; Spears was employed at

Field Container in Marion, earning $8.90/hr. for 40 hrs./week with occasional



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Case No. 9-10-05


overtime; Spears had appropriate care for E.O. while working; Spears was current

with her bills; Spears had no law enforcement involvement for the past sixteen

(16) months; Spears had adequate food in the home; and Spears expressed her

desire to visit D.H..      Based upon his observations, the GAL ultimately

recommended supervised visits with D.H..

       {¶13} On August 24, 2007, the trial court held a hearing to address the

GAL reports of Minter and Diequez. Minter expressed that he held the same

opinion that he had offered at the first hearing on MCCSB’s motion for permanent

custody—that the motion for permanent custody should be denied, and he

attributed Spears’ past bad acts to immaturity.

       {¶14} On September 25, 2007, a new hearing was held on MCCSB’s

motion for permanent custody.

       {¶15} On October 10, 2007, GAL Diequez submitted his final report with

the trial court wherein he recommended that: Spears be given supervised visitation

with D.H.; D.H. remain in the Rostofer’s foster home while said visitation

occurred; and the case be periodically reviewed.

       {¶16} On December 12, 2007, the trial court granted MCCSB’s motion for

permanent custody. Thereafter, Spears appealed, and, on August 25, 2008, this

Court reversed again. In re D.H., 2008-Ohio-4304.




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      {¶17} After the second reversal, MCCSB filed a motion to return D.H. to

Spears with a protective supervision order. On October 22, 2008, the trial court

granted this motion. D.H. is currently in Spears’ custody.

      {¶18} On April 17, 2009, Spears filed a complaint in Marion County Court

of Common Pleas against Bush and MCCSB for alleged wrongful acts they

committed in handling the child custody case. (Doc. No. 1).

      {¶19} On July 1, 2009, defendants filed an answer pursuant to a stipulation

of the parties for an extension of time. (Doc. Nos. 5-6). On October 7, 2009,

defendants filed a Civ.R. 12(C) or, alternatively, Civ.R. 56 (C) motion. (Doc. No.

9). On November 6, 2009, Spears filed a memorandum in opposition. (Doc. No.

11). On November 19, 2009, defendants filed a reply. (Doc. No. 12).

      {¶20} On January 6, 2010, the trial court dismissed complaint. (Doc. No.

13). On January 21, 2010, Spears filed a notice of appeal. (Doc. No. 14).

      {¶21} Spears now appeals raising two assignments of error for our review.

                       ASSIGNMENT OF ERROR NO. I

      THE TRIAL COURT ERRED BY NOT ADDRESSING THE
      MARION COUNTY CHILDREN’S SERVICES BOARD
      UNKNOWN     EMPLOYEES    IN  GRANTING   THE
      APPELLEES’ MOTION FOR SUMMARY JUDGMENT.

      {¶22} In her first assignment of error, Spears argues that the trial court’s

judgment entry is not a final appealable order pursuant to Civ.R. 54(B) because it

did not address the “unknown employees” of MCCSB. We disagree.


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       {¶23} This Court has already determined that the trial court’s January 6,

2010 judgment entry is a final appealable order pursuant to R.C. 2505.02(B)(1)

since it dismissed the complaint in its entirety, and thereby, “in effect determine[d]

the action.” Spears v. Bush, et al. (Apr. 14, 2010), 3d Dist. No. 9-10-05. This

ruling is now law of the case, and therefore, Spears’ argument lacks merit.

       {¶24} Spears’ first assignment of error is overruled.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       GRANTING APPELLEES’ MOTION FOR SUMMARY
       JUDGMENT.

       {¶25} In her second assignment of error, Spears argues that the trial court

erred in granting appellees summary judgment based upon Chapter 2744

sovereign immunity.      Specifically, Spears argues that R.C. 2744.02(B)(5)’s

exception to immunity applies as to MCCSB because: it failed to make attempts

at reunifying D.H. with Spears as part of its case plans as required by R.C.

2151.412(F); and R.C. 2151.412(E)(1) imposes civil liability upon MCCSB, as a

“party” bound by the terms of a journalized case plan for failing to attempt

reunification of a child in its temporary custody. (Appellant’s Brief at 9). With

respect to Bush, Spears argues that, through his acts or omissions, he recklessly

attempted to prevent reunification of D.H. with her and is, therefore, liable under

R.C. 2744.03(A)(6)(b). We disagree.



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         {¶26} As an initial matter, we note that both parties have indicated in

their briefs to this Court that the trial court granted summary judgment pursuant

to Civ.R. 56(C) and argued summary judgment standards on appeal. (Appellant’s

Brief at 5-6, 12); (Appellees’ Brief at 5, 8, 10). Defendants filed a motion for

judgment on the pleadings pursuant to Civ.R. 12(C) or, alternatively, for

summary judgment pursuant to Civ.R. 56(C). (Doc. No. 9). Although the trial

court’s judgment entry does contain two statements1 in the alternative

concerning Spears’ lack of “evidence,” reading the trial court’s judgment entry in

its totality leads us to conclude that the trial court dismissed the case pursuant to

Civ.R. 12(C). (Doc. No. 13). The record in this case also appears to indicate that

the trial court’s disposition was based upon Civ.R. 12(C) since neither party has

filed any evidence of the types listed in Civ.R. 56(C) or (E)—aside from the

pleadings and the journal entries attached thereto—in support of or in opposition

to the motion. Therefore, this Court will review the trial court’s “dismissal”

under Civ.R. 12(C) standards and not Civ.R. 56(C) standards.

         {¶27} “[T]he standards for Civ.R. 12(B)(6) and (C) motions are similar,

but Civ.R. 12(C) motions are specifically for resolving questions of law[.]” State

ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664


1
  The trial court stated the following in its judgment entry: “Plaintiff not only presents no evidence of a
‘disposition to perversity’ by Eric Bush, but the Complaint alleges no factual basis for such an allegation. *
* * Despite the conclusory allegations, no factual misconduct is specifically alleged as to Mr. Bush, nor did
Plaintiff offer any evidence of the same in her Memo Contra.” (Jan. 6, 2010 JE, Doc. No. 13).


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Case No. 9-10-05


N.E.2d 931, citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 166, 297

N.E.2d 113. Dismissal is appropriate under Civ.R. 12(C) only when a court: (1)

construes the material allegations in the complaint, along with all reasonable

inferences therefrom, in favor of the nonmoving party as true; and (2) finds

beyond doubt, that the plaintiff could prove no set of facts in support of his claim

that would entitle him to relief. Pontious, 75 Ohio St.3d at 570, citing Lin v.

Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96, 99, 616 N.E.2d 519. On the

other hand, a court need not assume the truth of conclusions, which are not

supported by factual allegations. Garofalo v. Chicago Title Ins. Co. (1995), 104

Ohio App.3d 95, 104, 661 N.E.2d 218, citing Mitchell v. Lawson Milk Co. (1998),

40 Ohio St.3d 190, 192-93, 532 N.E.2d 753 (noting that the complaint’s facts, not

its conclusions, determine a Civ.R. 12(B)(6) motion).       Appellate review of a

judgment on the pleadings is de novo. Trinity Health Sys. v. MDX Corp., 180 Ohio

App.3d 815, 2009-Ohio-417, 907 N.E.2d 746, ¶19; Reznickcheck v. North Cent.

Correctional Institution, 3d Dist. No. 9-07-22, 2007-Ohio-6425, ¶11.

      {¶28} Chapter 2744 governs political subdivision liability and immunity.

To determine whether a political subdivision is entitled to immunity under Chapter

2744, a reviewing court must engage in a three-tiered analysis. Hubbard v. Canton

Cty. Schl. Bd. Of Ed., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶10,

citing Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. First, the



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court must determine whether the entity claiming immunity is a political

subdivision and whether the alleged harm occurred in connection with either a

governmental or proprietary function. R.C. 2744.02(A)(1); Hubbard, 2002-Ohio-

6718, at ¶10. The general rule is that political subdivisions are not liable in

damages. Id. If the entity is a political subdivision entitled to immunity, then the

court must determine whether any of the R.C. 2744.02(B) exceptions to immunity

apply. Hubbard, 2002-Ohio-6718, at ¶12, citing Cater, 83 Ohio St.3d at 28. If any

of the R.C. 2744.02(B) exceptions apply, then the political subdivision can

reinstate its immunity by showing that a R.C. 2744.03 defense applies. Cater, 83

Ohio St.3d at 28. If none of the R.C. 2744.02(B) exceptions to immunity apply,

however, R.C. 2744.03’s defenses need no consideration. Estate of Ridley v.

Hamilton Cty. Bd. of Mental Retardation and Developmental Disabilities, 150

Ohio App.3d 383, 2002-Ohio-6344, 781 N.E.2d 1034, ¶26, citing Cater, 83 Ohio

St.3d at 28.

       {¶29} MCCSB is a political subdivision performing a governmental

function. R.C. 2744.01(C)(2)(m), (o); Rankin v. Cuyahoga Cty. Dept. of Children

and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521, ¶16.

       {¶30} R.C. 2744.02(A)(1) provides, in pertinent part, “[e]xcept as provided

in division (B) of this section, a political subdivision is not liable in damages in a

civil action for injury, death, or loss to person or property allegedly caused by any



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act or omission of the political subdivision or an employee of the political

subdivision in connection with a governmental or proprietary function.” R.C.

2744.02(B)(5) provides, in relevant part:

      * * * a political subdivision is liable for injury, death, or loss to
      person or property when civil liability is expressly imposed upon
      the political subdivision by a section of the Revised Code * * *.
      Civil liability shall not be construed to exist under another
      section of the Revised Code merely because that section imposes
      a responsibility or mandatory duty upon a political subdivision,
      because that section provides for a criminal penalty, because of a
      general authorization in that section that a political subdivision
      may sue and be sued, or because that section uses the term
      “shall” in a provision pertaining to a political subdivision.

      {¶31} Spears argues that MCCSB is liable via R.C. 2744.02(B)(5) by

virtue of the civil liability imposed under R.C. 2151.412(E)(1) for MCCSB’s

failure to make efforts at reunification under R.C. 2151.412(F). We disagree.

R.C. 2151.412 provides, in pertinent part:

      (E)(1) All parties, including the parents, guardian, or custodian
      of the child, are bound by the terms of the journalized case plan.
      A party that fails to comply with the terms of the journalized
      case plan may be held in contempt of court. * * *

      (F)(1) All case plans for children in temporary custody shall
      have the following general goals: * * *

      (b) To eliminate with all due speed the need for the out-of-home
      placement so that the child can safely return home.

(Emphasis added). Even assuming that MCCSB is a “part[y]” for purposes of

R.C. 2151.412(E)(1) and subject to contempt of court, the statute does not



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“expressly impose[]” civil liability as R.C. 2744.02(B)(5) requires. Cf. In re J.P.,

3d Dist. Nos. 5-06-52, 5-06-53, 2007-Ohio-1903, ¶68 (inferring that Hancock

County Job and Family Services, Children Protective Services Unit (CPSU) could

be held in contempt under R.C. 2151.412(E)(1) for its failure to comply with the

case plan); Marshall v. Montgomery Cty. Children’s Servs. Bd. (2001), 92 Ohio

St.3d 348, 352-53, 750 N.E.2d 549 (R.C. 2151.421(F)(1) does not subject children

services board to civil liability via R.C. 2744.02(B)(5) for its failure to investigate

reports of child abuse or neglect).      At most, R.C. 2151.412(E)(1) imposes a

“responsibility or mandatory duty” upon MCCSB to comply with the terms of the

journalized case plan, which is insufficient to meet R.C. 2744.02(B)(5)’s

exception to immunity. O’Toole v. Deniham, 118 Ohio St.3d 374, 2008-Ohio-

2574, 889 N.E.2d 505, ¶68, citing Butler v. Jordan (2001), 92 Ohio St.3d 354,

357, 750 N.E.2d 554.       Therefore, MCCSB’s sovereign immunity under R.C.

2744.02(A)(1) is not removed by operation of R.C. 2744.02(B)(5)’s exception.

       {¶32} Since Spears has failed to demonstrate that any of the R.C.

2744.02(B)(5) exceptions to sovereign immunity apply, we need not discuss any

of the R.C. 2744.03 defenses, and Spears complaint against MCCSB was properly

dismissed as a matter of law. Estate of Ridley, 2002-Ohio-6344, at ¶26, citing

Cater, 83 Ohio St.3d at 28; Rankin, 2008-Ohio-2567, at ¶32; O’Toole, 2008-Ohio-

2574, at ¶71.



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       {¶33} With respect to Bush, Spears argues that, through his acts or

omissions, he recklessly attempted to prevent reunification of D.H. with her and

is, therefore, liable under R.C. 2744.03(A)(6)(b).

       {¶34} R.C. 2744.03(A)(6) provides, in pertinent part: “* * * the employee

is immune from liability unless one of the following applies: (b) The employee’s

acts or omissions were with malicious purpose, in bad faith, or in a wanton or

reckless manner[.]” The facts must demonstrate that the employee acted with a

“perverse disregard of a known risk” in order for his or her actions to be

“reckless” under R.C. 2744.03(A)(6)(b). O’Toole, 2008-Ohio-2574, at ¶73, citing

Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639

N.E.2d 31. See, also, McGuire v. Lovell (1999), 85 Ohio St.3d 1216, 1219, 709

N.E.2d 841 (Moyer, C.J., dissenting); Jackson v. Butler Cty. Bd. of Cty. Commrs.

(1991), 76 Ohio App.3d 448, 454, 602 N.E.2d 363 (“we recently held that the

term ‘reckless’ as used in R.C. 2744.03(A)(6)(b) means a perverse disregard of a

known risk”).    In addition, to be considered “reckless,” “the actor must be

conscious that his conduct will in all probability result in injury,” and such

conduct must “demonstrate a disposition to perversity.” O’Toole at ¶¶74-75,

citing Fabrey, 70 Ohio St.3d at 356.

       {¶35} The only substantive factual allegations against Bush, specifically,

was that he was “the executive director of [MCCSB] * * * [and] was a driving



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force in the Plaintiff’s claims in both his official and individual capacities.”

(Complaint, Doc. No. 1, at ¶7).     The material allegations of the complaint

generally are these:

             The Third District Court of Appeals noted that the Board’s
       brief in support of its position [sic] the Board erroneously
       claimed that the Plaintiff was involved in drug trafficking which
       the Board knew that it was false.
             The Board provided the trial court with its memorandum
       which was the source of all the findings that are contrary to the
       evidence as because it contained numerous incorrect statements
       that have no basis in the record and completely failed to
       consider the additional evidence presented at the September
       2007 hearing including that offered by the Board’s own
       employee.
             The Board in its memorandum to the trial court misstated
       the evidence and alleged that the Plaintiff was charged with drug
       trafficking, had no employment, and was using alcohol in spite
       of the fact that no evidence of these claims was presented at the
       hearing and undisputed evidence to the contrary was presented.
             The Board made some effort to help Brittany prior to the
       filing of the motion for permanent custody in 2006 but refused to
       make any efforts since then including after the reversal and
       remand of the prior judgment from Third District Court of
       Appeals.
             The Third District Court of Appeals expressed its concern
       about the general attitude of the Board in regards to the
       Plaintiff’s case.
             The Third District Court of Appeals stated that the Board
       misrepresented the timing of various events and stated that the
       Plaintiff had changed nothing in her life and was still in the same
       position as at the time of the last hearing in July which the Court
       said was not true.

(Id., at ¶¶20-25).




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       {¶36} Construing these material allegations in a light most favorable to

Spears, we find that Spears can prove no set of facts that would entitle her to

relief. That this Court “noted” or “stated” in our previous decision that MCCSB’s

memorandum in support of its motion for permanent custody “contain[ed]

numerous incorrect statements that have no basis in the record” does not state a

cause of action against Bush. In re D.H., 2008-Ohio-4304, at ¶41, fn. 9. The

complaint does not affirmatively allege that Bush, or even MCCSB, recklessly

made these false statements; rather the complaint alleges that this Court “noted” or

“stated” such in our prior opinion. (Complaint, Doc. No. 1, ¶20). The complaint

simply fails to allege any conduct by Bush, specifically, that could demonstrate a

“perverse disregard of a known risk” or “a disposition to perversity.” O’Toole,

2008-Ohio-2574, at ¶¶73-75, citing Fabrey, 70 Ohio St.3d at 356. As such, Bush

is entitled to judgment as a matter of law under R.C. 2744.03(A)(6)(b).

       {¶37} Spears’ second assignment of error is, therefore, overruled.

       {¶38} 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

WILLAMOWSKI, P.J. and SHAW, J., concur.




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