[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
-2-
Case No. 9-10-05
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
-3-
Case No. 9-10-05
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
-4-
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.
-5-
Case No. 9-10-05
{¶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.
-6-
Case No. 9-10-05
{¶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.
-7-
Case No. 9-10-05
{¶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).
-8-
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
-9-
Case No. 9-10-05
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
- 10 -
Case No. 9-10-05
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
- 11 -
Case No. 9-10-05
“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.
- 12 -
Case No. 9-10-05
{¶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
- 13 -
Case No. 9-10-05
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).
- 14 -
Case No. 9-10-05
{¶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.
- 15 -
