[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., 

 O P I N I O N 

 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 

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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 
Case No. 9-10-05 

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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 
Case No. 9-10-05 

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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. 
Case No. 9-10-05 

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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. 
Case No. 9-10-05 

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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). 
Case No. 9-10-05 

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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 
Case No. 9-10-05 

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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-Ohio6718, 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 
Case No. 9-10-05 

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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 
Case No. 9-10-05 

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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-Ohio2574, 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-Ohio2574, at ¶71. 
Case No. 9-10-05 

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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 
Case No. 9-10-05 

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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.