[Cite as In re M.B., 2013-Ohio-5668.]




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




IN RE:
                                                            CASE NO. 17-13-11
        M.B.,

ADJUDICATED ABUSED,
NEGLECTED AND DEPENDENT.
                                                            OPINION
[FLOYD TABORN - APPELLANT].
[TAMMY MURPHY - APPELLANT].




                  Appeal from Shelby County Common Pleas Court
                                  Juvenile Division
                            Trial Court No. 2011-ABU-9

                                        Judgment Affirmed

                          Date of Decision: December 23, 2013




APPEARANCES:

        Scott A. Kelly for Appellant, Tammy Murphy

        James Gudgel for Appellant, Floyd Taborn

        Melissa L. Wood for Appellee
Case No. 17-13-11


WILLAMOWSKI, J.

           {¶1} Appellant Tammy Murphy (“Murphy”), natural mother of M.B., and

Appellant Floyd Taborn (“Taborn”), natural father of M.B., bring this appeal from

the judgment of the Court of Common Pleas of Shelby County, Juvenile Division,

terminating both of their parental rights as to M.B. For the reasons set forth

below, the judgment is affirmed.

           {¶2} On May 4, 2011, the Shelby County Department of Jobs and Family

Services — Children Services Division (“the Agency”) filed a complaint naming

the minor child, M.B., and her parents. Doc. 1. Said complaint was based on

abuse, neglect, and dependency. Id. At that time, M.B. resided with her mother,

Murphy. Id. A hearing was held and on June 13, 2011, the trial court determined

that M.B. was an abused, neglected, and dependent child. Doc. 51, Temporary

custody of M.B. was granted to the Agency.1 Id. On February 8, 2012, the

Agency filed a motion for permanent custody of M.B.2 Doc. 75. Murphy filed for

legal custody of M.B. on March 28, 2012. Doc. 94. A hearing on the outstanding

motions was held on June 21, 2012. Doc. 135. On July 24, 2012, the trial court

entered judgment denying Murphy’s motion and Taborn’s motion for legal

custody of M.B. and the Agency’s motion for permanent custody of M.B. as

regards Murphy. Id. The trial court granted the motion to terminate the parental


1
    The agency was also granted temporary custody of M.B.’s sisters, T.M. and A.B.
2
    At that time, T.M. was residing with her father and A.B. had been returned to Murphy.

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Case No. 17-13-11


rights of Taborn at that time. Id. The temporary custody of M.B. was continued

with the Agency. Id. Taborn filed his notice of appeal from that judgment on

August 7, 2012. Doc. 147. This court reversed the judgment of the trial court

terminating the parental rights of Taborn on February 25, 2013. Doc. 198, In re

M.B., 3d Dist. Shelby No. 17-12-19, 2013-Ohio-652.

           {¶3} On December 21, 2012, the Agency filed a new motion for permanent

custody of M.B. Doc. 182. This motion alleged that M.B. had been in the custody

of the Agency for more than twelve of the prior twenty-two consecutive months

and that a granting of permanent custody would be in the best interest of M.B. Id.

Murphy then filed a renewed motion to have custody of M.B. returned to her.

Doc. 185. The Agency filed a further motion for permanent custody of M.B. on

March 26, 2013.3 Doc. 215. On April 4, 2013, Murphy filed a renewed motion to

have permanent custody of M.B. granted to her. Doc. 228.

           {¶4} On April 16, 2013, Paula Zimmerman acting in her capacity as the

guardian ad litem (“the GAL”), filed her report. Doc. 250. The report indicated

that the GAL maintained monthly contact with M.B. and described her as “a

pretty, thriving, mentally challenged 10 year old approaching adolescence.” Id. at

1. The GAL report also indicated the following statements concerning Murphy.

           I have at least monthly contact with [Murphy] in this case. I
           have met with her in formal and informal settings, at meetings at

3
    A further motion was necessary after the prior ruling terminating Taborn’s rights was reversed on appeal.

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Case No. 17-13-11


      CSD, supervised visitations, and in her home. [Murphy]
      requires the assistance of a CSD case manager, an in home case
      manager, and the assistance of an in home counselor to parent
      [M.B.] appropriately. [Murphy] remains firmly convinced that
      she’s an able parent independent from the case of care givers
      that surrounds and guides her. [Murphy] has chosen to allow a
      man who calls himself John Reed to live with her in her
      household. Although the case plan has dictated that anyone
      living in the household needs to be fingerprinted, John has
      avoided this task since last August. He remains an unknown
      figure in the household in direct defiance of the case plan.
      [Murphy] allowed friends to live with her in February, one of
      whom was discovered to be a registered sex offender in the state
      of Washington. [Murphy’s] understanding of the concerns of
      CSD and the case plan is limited at best. [Murphy] was the
      victim of John Reed’s drunken behavior and assault in
      December. The Sidney City Police were called to the house on
      North Ohio twice in a weekend. No charges were filed and
      [Murphy] and John are OK with their continued living
      arrangement.        [Murphy] has no validated consistent
      employment and would not be able to sustain her current
      household without the financial assistance of John Reed or some
      other resource.

Id. at 1.   During the visits between Murphy and M.B., M.B. frequently

manipulates Murphy until Murphy loses control of the situation. Id. at 2.   The

GAL also made a statement concerning Taborn.

      I have had only two contacts with [Taborn] other than our
      shared presence in the courtroom. We were in a Primary Care
      Team Meeting at Children’s Services together once. Later, I
      observed a visitation in the summer of 2012 after which I voiced
      my concern about [Taborn’s] parenting style to the case
      manager who was present. I observed the [sic] [Taborn’s] only
      way of interacting with [M.B.] consisted of having her sit on his
      lap while he attempted to tickle her. This observation was
      corroborated recently when the case manager told [Taborn] that
      it was inappropriate for him to have [M.B.] sit on his lap while

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Case No. 17-13-11


        he placed his hands on her breasts. [Taborn] has yet to follow
        any of the case plan objectives. He has outright failed or failed
        to accomplish at least four drug screens, has no validated
        domicile, and has no reported income. [Taborn] has been
        verbally angry with CDS and has hung up on Barb Reindel
        when she attempted to discuss the case plan with him.

Id. at 2-3. After speaking with numerous people involved in the process and

reviewing    Murphy’s    psychological     evaluation,   the   GAL   made   her

recommendation.

        I find that the biggest change in this case is that NOTHING has
        changed except that [Murphy] has added an unidentified male
        over 30 to her household. The only thing we know about this
        man is that he says his name is John Reed. [Murphy]
        encourages John to continue living with her and her teen-aged
        daughter, [A.B.], knowing that this is in violation of the case
        plan. [Murphy] does not have an income. [Murphy’s] three
        case persons from different agencies agree that without daily
        intervention, [Murphy’s] decision making and parenting skills
        are not sufficient to manage to maintain the safety of a child
        with significant developmental delays that fall in the range of
        severe mental retardation. The observation from direct service
        providers align with those of Dr. Hrinko in his psychological
        evaluation of [Murphy]. [Murphy] has not made her household
        a safe and nurturing place for [M.B.] whose needs are different
        from [Murphy’s] other children. During the last three months
        [Murphy] has been accosted by the drunken behavior of her
        male housemate, and she spent several days in the Shelby
        County Jail as a result of a probation violation.

        As a result, I recommend that [the Agency] be granted
        permanent custody of [M.B.].

Id. at 3.




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      {¶5} The permanent custody hearing was held on April 23 and 24, 2013.

Tr. 9. The first witness to testify on behalf of the Agency was Lindsey Moore

(“Moore”). Moore testified that at the time of the hearing, she was an ongoing

caseworker for Montgomery County Children Services. Tr. 14. Moore testified

that M.B. entered into the temporary custody of the Agency in May of 2011. Tr.

16. She also testified that M.B. has developmental disabilities. Tr. 16. Although

Murphy was generally compliant with the services provided at the time of the

appointments, she did not follow through with the directions she was given when

on her own. Tr. 17-18. Moore also testified that there was an issue with Murphy

lying to the Agency. Tr. 18-19. When Moore left the Agency, her concerns as to

Murphy were that she did not follow through with services and that she allowed

people into her home who were not safe for M.B. to be around even after she was

requested not to do so. Tr. 22. Although A.B. and T.M. were permitted to visit

with M.B., they rarely came to the visits. Tr. 23. Moore left the employ of the

Agency in March of 2012. Tr. 24.

      {¶6} Moore testified that the Agency had requested that Taborn complete a

psychological evaluation, complete a drug and alcohol assessment, submit to

random drug screens, complete a parenting education course, maintain stable

housing and employment, and be consistent with visitation. Tr. 19. Although

Taborn completed the psychological evaluation, to Moore’s knowledge he did not


                                       -6-
Case No. 17-13-11


follow the recommendations. Tr. 19. Moore testified that while she was the

caseworker, Taborn had not participated in any other services and was inconsistent

with visitation.   Tr. 19.   Moore reported that when she left her position as

caseworker, she had concerns about Taborn parenting M.B. Tr. 21.

       [H]e didn’t have any stable housing or income at the time of my
       leaving so he would have had no way of providing for [M.B.].
       Um, he also was unwilling to complete drug and alcohol
       assessments or drug screens so his drug use was not - - was
       unknown to me and he also was very defiant when working with
       parenting coaches or other people in - - in ways to interact with
       [M.B.] and ways to redirect her with her disability, um, so I
       would have had a lot of concerns with him having custody of
       M.B.

Tr. 21-22. Moore also testified that there had been a prior police report for Taborn

striking M.B. and that at that time he was found to have marijuana on him. Tr. 22.

       {¶7} On cross-examination, Moore testified that Murphy was faithful in

participating in services and if she had to miss, Murphy notified Moore in advance

and provided an excuse. Tr. 27. Moore also agreed that Murphy was completing

the tasks requested of her. Tr. 28. In Moore’s opinion, Murphy did well with

M.B. as long as there was someone to direct her during the interactions. Tr. 28.

Murphy did not miss visitations with M.B. and there is a bond between the two.

Tr. 30. Moore testified that Murphy interacted well with M.B. at visits and spent

the whole time playing or talking with M.B. Tr. 31. As to Taborn, Moore

testified that at the beginning of the case plan, Taborn came to most visitations.


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Tr. 32. However, by the time she left the Agency, Taborn had attended “under

fifty percent of the available visitations.” Tr. 33. His visitation declined after he

was required to call an hour in advance of the visit to let them know that he

intended to attend. Tr. 33. Moore denied that she saw anything inappropriate in

Taborn’s behavior that would have caused the visits to be stopped. Tr. 34.

       {¶8} The second witness for the Agency was Betty Hoaglin (“Hoaglin”),

who was the foster mother of M.B. Tr. 39-41. Hoaglin testified that M.B. has

resided with them since May of 2011. Tr. 42. When M.B. arrived, she would just

sit on the couch and watch everything without participating. Tr. 42. M.B. was not

able to use the bathroom by herself, to dress herself, or to bathe herself. Tr. 42.

M.B. did not seem to know how to play and was overweight when she arrived. Tr.

42-43. Since M.B.’s arrival, she has bonded to the members of her family. Tr. 45.

Hoaglin testified that M.B. has lost weight and seems happy at their home. Tr. 43-

45. Hoaglin testified that after evening visits and in-home visits were started,

M.B. began wetting herself more. Tr. 46.

       {¶9} The third witness was Irene Cooper (“Cooper”), who was M.B.’s

teacher for three years. Tr. 57. Since M.B. was removed from Murphy’s care, she

is thinner, wearing clean clothing and seems happy. Tr. 61. Cooper also testified

that recently M.B. has become more outgoing and will join in the activities with

the other children. Tr. 61. Although M.B. is developmentally delayed, she has


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Case No. 17-13-11


made progress academically.      Tr. 62.   Cooper testified that Murphy has not

attended any recent meetings regarding M.B., but Hoaglin is active in supporting

M.B.’s progress. Tr. 64.

       {¶10} Jenny Smith (“Smith”) testified that she was the school physical

therapist who worked with M.B. Tr. 80-83. Smith testified that she had worked

with M.B. for four years and that M.B. has decreased strength overall, decreased

balance, and decreased coordination. Tr. 83. Over the prior year, M.B.’s balance

and strength have improved.      Tr. 84.       M.B.’s “attitude” and willingness to

participate in the therapy has greatly improved. Tr. 84. Smith testified that it is

possible that M.B. would no longer require physical therapy within the next year.

Tr. 85. Although Smith has worked with M.B. for multiple years, she does not

recall ever speaking with Murphy. Tr. 90. In contrast, she has spoken with

Hoaglin on multiple occasions. Tr. 90.

       {¶11} The next witness for the Agency was Janice Geise (“Geise”). Tr. 91.

Geise testified that she was the in-home coach for Murphy and Taborn. Tr. 93-94.

Geise had been working with Murphy since October 2012 and with Taborn since

the end of February 2013. Tr. 93. The work with Taborn is done at the Agency

since Geise did not know where Taborn lived. Tr. 94. To assist Taborn, Geise

supervised his visits with M.B. Tr. 94. Geise reported that Taborn missed half of

the visits. Tr. 94. At the visits Taborn is required to bring in healthy snacks or a


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Case No. 17-13-11


meal and to assist M.B. with her homework. Tr. 95. Taborn brings healthy snacks

and does help M.B. with her homework. Tr. 95. On occasion, Taborn has gotten

angry with Geise when she instructs him to discipline M.B. and he does not agree

that M.B. has done anything wrong.4 Tr. 95. Geise testified that M.B. is not able

to protect herself by establishing appropriate boundaries with people. Tr. 96. This

has led Geise to conclude that Taborn cannot appropriately parent M.B. Tr. 97.

        {¶12} The visits with Murphy were originally at Murphy’s home, but were

moved to the Agency in December. Tr. 97. The visits were occurring twice a

week, though no visits were done in April of 2013. Tr. 97. Geise testified that she

works with Murphy on issues of nutrition and basic parenting. Tr. 98. During a

typical visit, Geise would require Murphy to help M.B. with her homework and to

provide supper for M.B. Tr. 98. After supper, they were allowed to visit, but

eventually Murphy was expected to help M.B. with her shower. Tr. 98-99. Geise

testified that Murphy did what was requested of her. Tr. 99. When Geise would

help Murphy make a menu for the meal, it was appropriate, but when left on her

own, Murphy would provide fried foods and no vegetables. Tr. 99-100. Geise

also testified that Murphy is capable of appropriately disciplining M.B. when

directed, but if not directed, there is frequently no discipline for bad behavior. Tr.

101. Murphy applies what she has learned when reminded, but does not maintain


4
  In the instance discussed in the testimony, Geise was unhappy that Taborn did not reprimand M.B. for
calling Geise a witch because he thought it was funny. Tr. 95.

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it at other times. Tr. 102. As to the sisters, Geise testified that A.B. is good with

M.B., but T.M. does not show interest in M.B. Tr. 102. Neither sister had

attended recent visits. Tr. 103.

        {¶13} On cross-examination, Geise testified that she does not see affection

from M.B. towards Murphy. Tr. 107. Geise also has not observed any affection

between M.B. and her sisters. Tr. 107-08. The home is clean and there is food

available at the visits. Tr. 108. In addition there are no physical limitations that

causes concern for M.B.’s safety. Tr. 108. Geise’s concerns about discipline are

because rather than placing M.B. in time out when there is an issue, Murphy will

argue with M.B.           Tr. 112.       Geise’s concerns were that Murphy could not

adequately protect M.B. from T.M. when she visits and that without appropriate

discipline, M.B. would end up “in real trouble” in the future. Tr. 113. She also

testified that Taborn’s missed visits may have been due to work. Tr. 120. When

Taborn is helping M.B. with her homework, he will attempt to discipline M.B.

when she avoids doing her work, but he does not know what she is capable of

doing. Tr. 120.5 Taborn did bring healthy snacks as requested. Tr. 120.

        {¶14} The sixth witness for the Agency was Jodi Knouff (“Knouff”). Tr.

128. Knouff testified that she is a social worker who has provided home based

counseling services on two separate occasions. Tr. 129-130. The first time was


5
 Taborn’s visits were terminated in July of 2012 and were not restarted until February 28, 2013, when this
court reversed the prior ruling of the trial court terminating Taborn’s parental rights.

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from June of 2011 until February of 2012, and then October of 2012 until the time

of the hearing. Tr. 130. The first round of counseling was done twice a week, but

the second time was only once a week. Tr. 131. During the first round of

counseling, Knouff worked with Murphy on decision making skills, coping, and

relationship building. Tr. 132. Murphy was very cooperative during the first

sessions. Tr. 132. During the second round of counseling, Murphy was less

cooperative and missed several meetings. Tr. 132. Knouff testified that during the

first sessions, she engaged in modeling appropriate behavior and talk therapy. Tr.

133. At that time, Murphy was open to suggestions, but seemed to be in denial

about some of her parenting deficits, specifically poor decision making. Tr. 134.

Knouff testified that Murphy did well when given concrete direction and someone

was present to supervise, but does not do well when on her own. Tr. 134. During

the second session, the problem with denial was still present, but was worse

because Murphy was “more resistant to change”. Tr. 135. Although Murphy had

made progress, she lacked consistency with the progress.       Tr. 138.   Knouff

testified that based upon what she had observed, she did not feel that Murphy

could meet M.B.’s needs. Tr. 139.

      {¶15} On cross-examination, Knouff admitted that Murphy had made

“notable” progress during the first session of counseling. Tr. 141. During the

second round of counseling, Knouff does not have the opportunity to see Murphy


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and M.B. interacting. Tr. 142. Knouff testified that she had seen a mother-

daughter bond between Murphy and M.B. Tr. 142. Knouff also testified that

Murphy has some level of commitment to M.B., but was not sure of the level. Tr.

151.

       {¶16} Candice Mitchell (“Mitchell”) was the seventh witness to testify for

the Agency. Tr. 158. Mitchell testified that she had acted as a family coach for

Murphy. Tr. 159. She only worked with Murphy for one month, October 2012.

Tr. 160. During one of the visits, Murphy told M.B. that she could not have a

snack. Tr. 161. M.B. responded by biting herself and would not stop until forced

to do so by Mitchell and Murphy. Tr. 161. Murphy then treated the bite wound.

Tr. 161. Murphy’s typical response to this type of behavior is to “kind of” panic.

Tr. 161. Mitchell testified that in her presence, Murphy was consistent in making

M.B. behave. Tr. 162. Mitchell also testified that the visits which involved T.M.

were unpleasant, but that A.B. did well with M.B. when T.M. was not present. Tr.

163. Mitchell chose to end the visits at the home because she felt threatened by

T.M. Tr. 163-65.

       {¶17} On cross-examination, Mitchell testified that the home was clean and

appropriate and that there was food available.     Tr. 168.   The specific goals

Mitchell was trying to accomplish were to have Murphy learn to feed M.B. proper

meals, help M.B. with homework, and help M.B. with her personal hygiene. Tr.


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168. In the month, there was no improvement, but there were no new concerns

either. Tr. 169. Mitchell testified that her biggest concern was how the household

residents became stressed by the presence of T.M. when she was there. Tr. 169.

In general, Murphy seemed capable of disciplining M.B. Tr. 170. Mitchell

testified that at some times, Murphy was able to make good choices by herself, but

at other times, she needed prompts from Mitchell. Tr. 171. Mitchell testified that

there was a bond between Murphy and M.B. and that M.B. was really happy to see

Murphy and did not want to leave. Tr. 172. Mitchell also observed a bond

between M.B. and her sisters. Tr. 173. Mitchell also testified that she believed

Murphy to be committed to M.B.’s welfare. Tr. 173. Mitchell was unable to offer

any testimony concerning Taborn because she had not worked with him. Tr. 174.

      {¶18} The eighth witness for the Agency was Sharon Spitler (“Spitler”)

who was the case manager assigned to assist Murphy to become more

independent. Tr. 177-78. Spitler did not work with Taborn or have interaction

with him in any manner. Tr. 179. Spitler began working with Murphy on January

2, 2013. Tr. 179. Spitler’s goal was to help Murphy sign up for benefits to allow

her to live independently. Tr. 18. Of the fifteen appointments scheduled with

Murphy since January, Murphy had attended only three. Tr. 180. Although

Murphy was cooperative at the meetings, she did not follow through with the plan.

Tr. 180-81. Murphy had met none of the goals set. Tr. 181. Spitler testified on


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cross-examination that the Murphy household does not appear to be lacking any

necessities and that her rent and utilities have been paid by Murphy and the others

residing in the home. Tr. 182-83.      Spitler testified that the rent was paid by

Murphy’s boyfriend, John Reed (“Reed”). Tr. 184.

      {¶19} For the next witness, the Agency presented the testimony of Emily

Broering (“Broering”), who is the probation officer for Murphy. Tr. 186, 189. As

a result of a felony conviction for child endangering, Murphy was placed on

probation, which required her to comply with the case plan. Tr. 190-92. Broering

testified that Murphy has violated the terms of her probation on two occasions. Tr.

192. The first violation was for allowing a convicted felon into her home. Tr.

192. The second violation was for failing to notify Broering of police contact

when she was a victim of domestic violence by Reed. Tr. 194. Other than the two

incidents, Murphy is cooperative with the terms of her probation. Tr. 200.

      {¶20} Amber McCullough (“McCullough”) testified next.              Tr. 203.

McCullough testified that she is an intake caseworker for the Agency. Tr. 204.

McCullough testified that she responded to a report of domestic violence in

Murphy’s home in December of 2012. Tr. 205. When McCullough interviewed

Murphy, Murphy admitted that she had been concerned for her safety due to

Reed’s temper when he was drinking. Tr. 206-07. McCullough testified that T.M.

and A.B. told her that Reed does not bother them and they will stand up to him


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more than Murphy will. Tr. 207. McCullough was told by A.B. and T.M. that the

incident started when Murphy told Reed she did not want to drink with him, he

pushed her, and she fell hitting her head on the microwave stand. Tr. 209. The

police were then called and told Reed to go upstairs and stay there. Tr. 209. The

second time the police were called, they told Murphy and Reed that if they had to

come back again, someone would be arrested and provided Murphy with

information about a domestic violence shelter. Tr. 210. On cross-examination,

McCullough testified that she had no firsthand knowledge as to what happened,

but was testifying to what she had been told by Murphy, Reed, A.B. and T.M. Tr.

213. In addition, McCullough has reviewed the police report. Tr. 214. As a result

of the incident, no new allegations of abuse, neglect or dependency were brought.

Tr. 216.

      {¶21} The next witness for the Agency was Lieutenant Cori Steiner

(“Steiner”) of the Shelby County Sheriff’s Office. Tr. 223. Steiner testified that

James Cullum came to the office to register that he would be staying at Murphy’s

address. Tr. 225. The man was a sex offender out of Washington, so had to

report. Tr. 225. The address was too close to a school, so he was not allowed to

stay there. Tr. 226. Steiner testified that the man left town immediately to return

to Washington and his arrival in Washington on the bus was verified by the man’s

probation officer in Washington. Tr. 226-27. Steiner testified that she was not


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sure of the exact offense but believed it was “child molest”. Tr. 227. Steiner also

did not know if it was a felony. Tr. 228. Steiner also did not know whether the

man actually ever stayed at the address. Tr. 228.

        {¶22} The twelfth witness for the Agency was Aja Sanford (“Sanford”),

who was the probation officer for A.B. Tr. 230-31. Since A.B. was placed on

probation on December 20, 2011, she has had two violations. Tr. 232. Sanford

testified that Murphy has “pretty much” complied with the terms of A.B.’s

probation, but has not been able to control A.B. Tr. 232-33. Sanford had concerns

about the “older men” visiting the home and Murphy’s honesty regarding this.6

Tr. 233. On cross-examination Sanford testified that Murphy had improved in her

discipline of A.B. Tr. 235. Since being returned to Murphy, A.B. has complied

with probation and improved her grades. Tr. 235. Sanford testified that A.B. is

not a risk for children around her. Tr. 236. When it comes to compliance,

Murphy must be reminded of the rules. Tr. 236. Once Murphy is reminded, she

does follow the rules. Tr. 236.

        {¶23} Barb Reindel (“Reindel”) testified that she was the ongoing

caseworker assigned to M.B.’s case. Tr. 244. Reindel began as the caseworker on

August 10, 2012 and continued through the hearing date. Tr. 245. M.B. entered

the custody of the Agency on May 4, 2011, and has remained in it continuously


6
  “Older” was defined by Sanford as anyone over eighteen. A.B. has had relationships with men between
the ages of 20 and 30 which caused concern for Sanford. Tr. 238.

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through the hearing date. Tr. 245. Reindel testified that the identified issues with

Murphy were parenting limitations, a lack of independence, poor relationship

choices, and safety in the home and family. Tr. 246. Other than the numerous

services already provided to Murphy, Reindel could not think of any other services

which would assist Murphy. Tr. 247-48. The home-based services provided

included weekly counseling. Tr. 249. The result shows that since October of

2012, Murphy has attended ten of twenty-five possible appointments and has

shown little measurable improvement. Tr. 249. Reindel testified that in her

opinion Murphy would be unable to provide for M.B. without continued

professional support. Tr. 249.

       {¶24} In addition to the counseling, Murphy was provided parent education

and support during visitation.      Tr. 250.      Reindel testified that Murphy’s

compliance rate for attendance was “in the upper seventy percentile.” Tr. 250.

The Agency still has concerns about Murphy being able to consistently

demonstrate parenting skills such as appropriate discipline and nutrition without

support from the parent educator.      Tr. 250.     Murphy has also shown little

compliance and improvement in the area of independently providing for her

family. Tr. 251. Rather than seeking assistance to pay her rent, she relies on male

partners with unknown histories to pay her rent. Tr. 251. This is a concern,

according to Reindel, because of the domestic violence incident that occurred in


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December of 2012. Tr. 251. Finally, there was an issue with the home being

infested with bedbugs as of March 2013, which is a health concern. Tr. 252.

Reindel is concerned because Murphy does not tell the Agency about the problems

and only works with the Agency when its employees learn about the issues from

outside sources. Tr. 252-53.

      {¶25} Reindel testified that Murphy has allowed Reed to live with them for

almost a year. Tr. 253-54. He has not complied with requests for a background

check. Tr. 254. All Reindel knows about Reed is that Murphy says “he’s a good

man because he pays the bills.” Tr. 253. Reindel testified that she had concerns

regarding Reed’s “alcohol use, the domestic violence and the unknown.” Tr. 255.

      {¶26} When questioned about Murphy’s employment, Reindel testified that

she had concerns. Tr. 256. As part of the case plan, Murphy was to establish

independence by finding employment. Tr. 256. Murphy told Reindel that she was

working for her landlord, but has provided no verification. Tr. 257. The only

verification of employment from the household has been from Reed. Tr. 257.

Reindel testified that she spoke with Murphy’s landlord who told her that although

Murphy cleans apartments as needed, she does not work for him on a regular

basis. Tr. 258.

      {¶27} As to Taborn, Reindel testified that she has concerns about his

criminal record, drug abuse issues, homelessness, hostility towards service


                                      -19-
Case No. 17-13-11


providers, and parenting skills. Tr. 260-61. She testified that she could not really

offer Taborn services because he would not establish a “working relationship”

with her. Tr. 261-62. Reindel admitted that there was a seven month time period

where services were not offered due to the appeal process. Tr. 262. However,

there was no progress from the initial plan in 2011 until July of 2012, and none

since February of 2013. Tr. 262. The only requests completed by Taborn was that

he had a psychological evaluation and has submitted to one drug screen on March

1, 2013, which was positive for marijuana. Tr. 262-63. Services were reinstated

for Taborn as of February 28, 2013. Tr. 263. When speaking with Taborn,

Reindel testified that she would consider him to be verbally aggressive. Tr. 264.

Reindel testified that she was not sure if Taborn really wanted custody of M.B. or

just wished to see her. Tr. 265.

       {¶28} Reindel testified that she is familiar with M.B. and sees her at least

monthly, but usually more. Tr. 265. Reindel testified that M.B. cannot protect

herself and requires more care than the average child. Tr. 265. When questioned

about the relationship between the family members, Reindel testified as follows.

       I would describe [Murphy] and [M.B.’s] relationship as, um, one
       where [Murphy] is very close to her daughter, very much cares
       for her daughter, um, loves her daughter. Um, over the course
       of my involvement I think [M.B.] enjoys seeing her mother, um,
       I think that she realizes or believes in her mind that that’s not
       her home, that’s not her primary caregiver and she is, um,
       enjoys seeing her mom but she is very definitely ready to go
       home, as she refers to the foster care givers’ residence.

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Case No. 17-13-11



      Q. And how would you describe [M.B.’s] relationship with her
      sister [A.B.]?

      A. They are, um, - - it is a good relationship, [A.B.] spends
      time with her. Um, during my monitoring of those first visits at
      the time of my assignment [A.B] paid a lot of attention to [M.B.]
      and [M.B.] liked that attention - - painting her nails and talking
      to her and, you know, playing with the family pets, that sort of
      things. Over the course of time [A.B.’s] contact with [M.B.] has
      significantly dropped off. Um, initially [M.B.] would ask more
      about [A.B.] but not so much as of recent to my knowledge. I
      think they are close, um, but I don’t know that I would classify it
      as an extremely bonded relationship.

      Q. Okay. And what about her other sister, [T.M.]?

      A. My contact with [T.M.] has been somewhat more limited
      but I have had some contact. I find [T.M.] very defiant, very
      unruly, um, I think she is a bad influence on [M.B.]. I know that
      [M.B.] has gone back to her foster care giver after contact with
      [T.M.] and the attitude of [M.B.] presents that attitude that
      [T.M.] presented. Um, [T.M.] doesn’t really come to visit and
      interact with [M.B.] - - there’s more of a “what can you do for
      me mom and I’m out of here as soon as I get it”. That’s the type
      of relationship I see, one of convenience.

Tr. 265-67. Reindel testified that M.B. is very secure in her foster placement and

has done well in the placement. Tr. 268.

      {¶29} On cross-examination, Reindel testified that Murphy has cognitive

limitations, but does have some parenting skills.     Tr. 284-86.    Reindel also

testified that Taborn’s visitations were not restarted with M.B. until March 14,

2013. Tr. 288. She also stated that the address she had for Taborn appeared to be



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Case No. 17-13-11


incorrect. Tr. 290. Reindel indicated that Taborn had failed to attend agency

meetings and IEP meetings for M.B. Tr. 292.

       {¶30} The final witness to testify on behalf of the Agency was the GAL.

The GAL testified that when she first met M.B., she was badly burned,

unresponsive to questions, and grossly overweight. Tr. 295. M.B. also was very

sedentary and did not like to be active. Tr. 295. As of the hearing date, the GAL

described M.B. as a smiling child who is responsive to questions and has

recovered from her injuries. Tr. 295. M.B. is very active now and behaves more

like a typical ten year old child. Tr. 296.   The GAL testified that M.B. is very

limited in her cognitive abilities and will need life-long personal care as she will

not live independently. Tr. 296. According to the GAL, M.B. was not able to

state her wishes because she cannot comprehend the proceedings. Tr. 297. The

GAL expressed concerns about Murphy’s ability to pay necessary expenses for

housing and food on what she earns in a week. Tr. 300. When asked about

Murphy’s ability to parent M.B., the GAL testified that based upon what she has

seen, M.B. is the person in charge, not Murphy. Tr. 302. The GAL recommended

giving permanent custody of M.B. to the Agency. Tr. 302.




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Case No. 17-13-11


         {¶31} When questioned about Taborn, the GAL testified that she had only

observed Taborn with M.B. on one occasion.7 Tr. 297. At that time, she was

concerned that Taborn would tickle M.B. while M.B. was sitting on his lap as she

found it inappropriate. Tr. 297. Her only other interaction with Taborn, outside of

court appearances, was one primary care team meeting at the Agency. Tr. 298.

Her opinion on Taborn was formed on his inactivity in the case, his lack of known

address, his unemployment, and his substance abuse issues. Tr. 298. Thus, she

would not recommend that Taborn be given custody of M.B. Tr. 298.

         {¶32} On cross-examination, the GAL indicated that she was last in

Murphy’s home in March of 2013. Tr. 305. However, the last time she saw

Murphy and M.B. interact was the fall of 2012. Tr. 305. The GAL denied that

there was a bond between M.B. and Murphy or one between M.B. and A.B. other

than they “knew each other.” Tr. 305-307. The GAL admitted that in her mind

this has always had the potential to be a permanent custody case from the very

beginning. Tr. 308-309. She also admitted that her only observation of Taborn

and M.B. interacting was done in the fall of 2011. Tr. 312. The GAL testified that

she has had no conversations with Taborn and that she has not tried to find out if

he has a residence or a job. Tr. 313. She chose not to do so. Tr. 313. She



7
  In her report, the GAL identified the time of this visit as August of 2012. When testifying, she identified
it as the fall of 2011. Since Taborn’s visitation was terminated in July of 2012, the date set forth in the
testimony is more likely.

                                                   -23-
Case No. 17-13-11


testified that in her opinion M.B. would stop asking to see Murphy over the course

of time. Tr. 314.

       {¶33} After the testimony of the GAL, the Agency rested its case. Tr. 315.

Murphy then presented the testimony of A.B. and herself. A.B. testified that she is

the sixteen year old sister of M.B. Tr. 316-18. A.B. testified that her relationship

with M.B. was “pretty good” and that she loves M.B. Tr. 319. She also testified

that M.B. loves her and that M.B. will run up to her, hug her, and tell her that M.B.

loves her every time they are together. Tr. 319. A.B. testified that she used to go

to all the visits, but she was tired of going down to the Agency for the visits. Tr.

320. She admitted that she had not been to the visits in a couple of months. Tr.

320. When questioned about the relationship between M.B. and Murphy, A.B.

testified that they get along “pretty great.” Tr. 320. A.B. testified that she sees

love between Murphy and M.B. Tr. 321. A.B. admitted that she had been in

criminal trouble before, had skipped school, and had been failing her classes. Tr.

321-22. She testified that she has turned her life around with Murphy’s help and is

now getting good grades, likes school, attends school regularly, and is trying to

work towards going to college. Tr. 322. A.B. denied that she was afraid of Reed

or that the household was unsafe or lacking necessities. Tr. 323-24.

       {¶34} Murphy testified on her own behalf. Tr. 335. Murphy testified that

the reason for the prior eviction was not that she could not pay the rent, but that


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Case No. 17-13-11


she refused because the landlord refused to fix the ceiling which was falling. Tr.

336-37. Since bedbugs were found in her home, Murphy had not seen M.B. for

three weeks because the Agency would not allow her to do so. Tr. 339. Murphy

testified that she had only missed three of her twice weekly visits – two due to

weather and one due to illness. Tr. 340. Murphy indicated that on all instances

she called and told the Agency and that she provided a doctor’s note for the

instance where she was ill. Tr. 340. Murphy testified that she is dedicated to

M.B. and loves her and that M.B. returns that love. Tr. 340-41. According to

Murphy, there is a strong bond between herself and M.B. and a strong bond

between M.B. and A.B. Tr. 342-43. In Murphy’s opinion, she has improved in

disciplining the children, feeding M.B. healthy food, and recognizing safety

issues. Tr. 344-46. Murphy admitted that she should have sought medical care for

M.B. when she was burned rather than trying to treat it herself. Tr. 346.

       {¶35} When questioned about her relationship with Reed, Murphy testified

that he denied having a criminal past and that he had not been charged with any

crimes since she has known him. Tr. 351-53. Since the one domestic violence

issue in December of 2012, Reed has not done or said anything that would be

considered threatening and no longer consumes alcohol.          Tr. 353.    Murphy

testified that she told Reed that if he drank any more alcohol, he would have to

leave. Tr. 354. Murphy admitted that she permitted her friend to stay in her home


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Case No. 17-13-11


for a week. Tr. 356. When she learned that the friend’s boyfriend was a sex

offender, she made him leave the home immediately. Tr. 357. Murphy testified

that she wanted M.B. to live with her and that she believed she could protect and

care for the child appropriately. Tr. 360.

       {¶36} On cross-examination Murphy admitted that she had some difficulty

in controlling her daughter who did not have special needs. Tr. 362-63. She

testified that she feels better able to parent now than previously. Tr. 363. Murphy

admitted that M.B. is healthier now that she has lost some of the excess weight.

Tr. 364. She also admitted that she had met Reed on the internet and that they had

only spoken on the phone before he moved from Tennessee to Ohio. Tr. 366.

       {¶37} The last witness to testify was Taborn, M.B.’s father.          Taborn

testified at his first visit in 2013, he was happy to see M.B. and that she was happy

to see him. Tr. 380.        However, at the recent visits he had attended, M.B.

repeatedly asked him where Murphy was and indicated that she wanted to be with

Murphy. Tr. 381. Taborn testified that he had missed two visits since having his

visitation reinstated, but that it was because he had to work overtime. Tr. 381.

Taborn admitted that since he had been returned to the case plan, he had not

completed the case plan, but testified that he had not had sufficient time to do so

since he was only returned to the case plan at the end of February 2013. Tr. 383.




                                        -26-
Case No. 17-13-11


Taborn also testified that if he could not have custody of M.B., he would like for

her to be returned to Murphy. Tr. 383.

          {¶38} On cross-examination, Taborn admitted that he would be concerned

if M.B. were injured a second time while in Murphy’s care. Tr. 386. He also

admitted that he had concerns about M.B. going to Murphy’s since he did not

know Reed. Tr. 388. However, he believed that Murphy could protect M.B. and

that Murphy would provide a safe home and meet all the needs of M.B. Tr. 390.

Taborn described Murphy as a good mother. Tr. 390. According to Taborn, M.B.

loves her mother and sisters very much. Tr. 391.

          {¶39} On June 3, 2013, the trial court entered its judgment granting the

Agency’s motion for permanent custody and terminating the parental rights of

Murphy and Taborn.8 Doc. 268. Taborn filed his notice of appeal from this

judgment on June 12, 2013. Doc. 272. Murphy filed her notice of appeal on June

24, 2012.        Doc. 280.       Both Taborn and Murphy have filed briefs and raise

assignments of error.

                                Murphy’s Assignment of Error

          The trial court erred in terminating the parental rights of
          [Murphy].




8
    Murphy’s motion for permanent custody was denied.

                                                  -27-
Case No. 17-13-11


                         Taborn’s Assignment of Error

      The Court’s decision, when it found that it was in the best
      interest of the minor child to terminate the parent’s parental
      rights was against the manifest weight of the evidence.

      {¶40} Both assignments of error allege that the trial court’s decision to

terminate their parental rights was in error. Since they raise the same question,

they will be addressed together. The right to raise one’s own child is a basic and

essential civil right. In re Murray (1990), 52 Ohio St.3d 155, 556 N.E.2d 1169.

“Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of their children.” In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5-02-

54, 2003-Ohio-1269, ¶6.      These rights may be terminated, however, under

appropriate circumstances and when all due process safeguards have been

followed. Id. Permanent custody determinations must be supported by clear and

convincing evidence and the appellate courts will review the record to determine

whether there is sufficient evidence to satisfy the requisite burden of proof. In re

A.R., 3d Dist. Seneca Nos. 13-09-03 through 13-09-07, 2009-Ohio-3536, ¶8.

“However, the trial court ‘is in the best position to observe the demeanor of the

parties, to [assess] their credibility, and to determine the accuracy of their

testimony.’” Id. at ¶9 (quoting In re Adoption of Holcomb, 18 Ohio St.3d 361,

367, 481 N.E.2d 613).       If the trial court’s determination is supported by




                                       -28-
Case No. 17-13-11


competent, credible evidence and the trial court did not abuse its discretion, then

the judgment will be affirmed. Id.

      {¶41} When considering a motion to terminate parental rights, the trial

court must comply with the statutory requirements set forth in R.C. 2151.414.

These requirements include in pertinent part as follows.

      (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:

      ***

      (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, or the child has been in the temporary custody of one or
      more public children services agencies or private child placing
      agencies for twelve or more months of a consecutive twenty-two-
      month period and, as described in division (D)(1) of section
      2151.413 of the Revised Code, the child was previously in the
      temporary custody of an equivalent agency in another state.

      For 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 or the date that is sixty days
      after the removal of the child from home.

      ***

      (C) In making the determination required by this section * * *, a
      court shall not consider the effect the granting of permanent

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Case No. 17-13-11


         custody to the agency would have upon any parent of the child.
         A written report of the guardian ad litem of the child shall be
         submitted to the court prior to or at the time of the hearing held
         pursuant to division (A) of this section * * * but shall not be
         submitted under oath.

R.C. 2151.414.

         {¶42} In this case, the Agency filed its motion for permanent custody under

R.C. 2151.414(B)(1)(d). This section requires that the child have been in the

custody of the Agency for twelve out of twenty-two consecutive months. M.B.

was adjudicated an abused, neglected, and dependent child on June 13, 2011.9

Doc. 51. The Agency filed the motions for permanent custody forming the basis

of the decision on December 21, 2012, and March 26, 2013. Doc. 182 and Doc.

215. Even using the earlier date of the two motions for calculation, M.B. had been

in the custody of the Agency for approximately nineteen of the prior twenty-two

consecutive months when the December motion was filed.                                Having met the

statutory requirements of R.C. 2151.414(B)(1)(d), the only question before the

trial court and this court is whether the termination of Murphy’s and Taborn’s

respective parental rights is in the best interest of M.B.

         {¶43} The determination of the best interest of the child is controlled by

R.C. 2151.414(D).

         (D)(1) In determining the best interest of a child at a hearing
         held pursuant to division (A) of this section * * *, the court shall
9
 This is less than sixty days after M.B. was removed from the home, so is the date to be used in the
calculation of time.

                                                   -30-
Case No. 17-13-11


       consider all relevant factors, including, but not limited to, the
       following:

       (a) The interaction and interrelationship of the child with the
       child’s parents, siblings, relatives, foster caregivers and out-of-
       home providers, and any other person who may significantly
       affect the child;

       (b) The wishes of the child, as expressed directly by the child or
       through the child’s guardian ad litem, with due regard for the
       maturity of the child;

       (c) The custodial history of the child, including whether the
       child has been in the temporary custody of one or more public
       services agencies * * * for twelve or more months of a
       consecutive twenty-two-month period * * *;

       (d) The child’s need for a legally secure permanent placement
       and whether that type of placement can be achieved without a
       grant of permanent custody to the agency;

       (e) Whether any of the factors in divisions (E)(7) to (11) of this
       section apply in relation to the parents and child.

R.C. 2151.414(D). “In a best-interests analysis under R.C. 2151.414(D), a court

must consider ‘all relevant factors,’ including five enumerated statutory factors,

one of which is the wishes of the child. No one element is given greater weight or

heightened significance.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶57,

862 N.E.2d 816.

       {¶44} In this case, the trial court stated in its judgment entry that it

considered the appropriate statutory factors, though it did not thoroughly discuss

the application of the law to the facts. The first factor the trial court must consider


                                         -31-
Case No. 17-13-11


is the child’s interaction and relationship with parents, siblings, foster care givers,

and any other relevant person. The trial court did find that M.B. had developed a

close relationship and bonded to the foster family.         J.E., 6.   The trial court

indicated that this relationship now exceeds that of the one between M.B. and

Murphy. Id. The trial court did not discuss M.B.’s relationship with Taborn or

A.B. However, there was testimony provided from which the trial court could

conclude that the relationships were not strong. Reindel testified that M.B. loves

her mother and Murphy loves M.B., but it is not a relationship where M.B. sees

Murphy as her caretaker. Tr. 265-67. Reindel also testified that at the end of the

visits, M.B. is ready to go “home” which is identified as the foster placement. Id.

When questioned about A.B. and M.B.’s relationship, Reindel again identified it

as a loving, close one, but not extremely bonded. Id. Reindel testified that the

relationship she saw between Taborn and M.B. was affectionate in that he wanted

to see M.B., but not one where he really wanted custody of her. Tr. 265.

       {¶45} The second factor that must be considered is the wishes of M.B. as

expressed by her or by her GAL. The GAL testified that she did not ask M.B. her

wishes because she did not believe that M.B. would understand. Tr. 297. The

GAL stated that in her opinion, it would serve M.B.’s best interests to grant

permanent custody to the Agency. Tr. 302. The GAL opined that over time, M.B.




                                         -32-
Case No. 17-13-11


would stop asking to see Murphy. Tr. 314. The trial court recognized that this

was the recommendation of the GAL and not the statement of M.B. J.E. 6.

          {¶46} The third factor that must be considered is the custodial history of

M.B. The record reveals that M.B. had been in the custody of the Agency for

almost two years at the time of the hearing. The trial court recognized this fact

and indicated that M.B. had “thrived” while in the care of her foster family. J.E. 5.

          {¶47} In the fourth factor, the trial court is required to consider the child’s

need for a legally secure permanent placement. There was substantial evidence

that neither Murphy nor Taborn would be able to parent the child in the near

future.      Murphy had not complied with the case plan by failing to find

employment, allowing an unknown third party to reside with her, and not being

truthful with service providers. All of the providers had the same opinion, that

Murphy was not making progress and was unlikely to do so even if given

additional time. All of the providers consistently testified that they had concerns

with returning M.B. to Murphy given M.B.’s limited cognitive functioning. As to

Taborn, the evidence was that when he was on the case plan, he made almost no

progress. The only provision with which he had complied was that he “obtain a

psychological evaluation”.         The evidence presented was that Taborn was

inconsistent with visitation both before the first termination and in the six weeks

from his reinstatement to the case plan and the final hearing. As of the hearing,


                                           -33-
Case No. 17-13-11


Taborn was living with family members and had only been working for less than a

month. The only drug screen he had taken was positive for marijuana usage.

Although there was no testimony concerning the likelihood of M.B. being

adopted, the evidence presented showed that M.B. was not likely to receive

stability from Murphy and/or Taborn in the near future and that she did have a

stable placement in the foster home.

      {¶48} The final mandatory factor is whether any of the factors set forth in

R.C. 2151.414(E)(7-11) apply.      The evidence shows that Murphy had been

convicted of felony child endangering for failing to seek medical treatment for

M.B. when she was burned.        Tr. 190. Thus, the factor in (E)(7) applies to

Murphy.

      {¶49} The trial court determined that after considering the relevant factors,

“including those set forth in R.C. 2151.414(D)(1)(a)-(e) and R.C. 2151.414(E)(7)-

(11)”, that there was clear and convincing evidence to find that it was in the best

interest of M.B. to terminate the parental rights of Murphy and Taborn. As there

is competent and credible evidence to support this determination by clear and

convincing evidence, the trial court did not abuse its discretion. The judgment of

the trial court must be affirmed. The assignments of error raised by both Murphy

and Taborn are overruled.




                                       -34-
Case No. 17-13-11


       {¶50} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Shelby

County, Juvenile Division, is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




                                          -35-
