In re D.D.

2019 Ohio 4646

Opinion

[Cite as In re D.D., 2019-Ohio-4646.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: Hon. W. Scott Gwin, P. J. IN THE MATTER OF: Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

D.D. Case No. CT2019-0025

A Dependent Child OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 21730238

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 8, 2019

APPEARANCES:

For Appellee For Appellant

D. MICHAEL HADDOX MICHAEL J. CONNICK PROSECUTING ATTORNEY MICHAEL J. CONNICK CO., LPA GERALD V. ANDERSON, II 301 Main Street ASSISTANT PROSECUTOR Suite H 27 North Fifth Street Zanesville, Ohio 43701 Zanesville,Ohio 43701 Muskingum County, Case No. CT2019-0025 2

Wise, J.

{¶1} Appellant Jacqueline S. appeals the decision of the Muskingum County

Court of Common Pleas, Juvenile Division, which granted permanent custody of her

daughter, D.D., to Appellee Muskingum County Children Services (“MCCS”). The

relevant facts leading to this appeal are as follows.

{¶2} On November 6, 2017, Appellee MCCS filed a complaint in the trial court

alleging that D.D., born November 2017, was neglected and/or dependent. Initial

concerns were that appellant had tested positive for methamphetamine, cocaine, and

marijuana upon admission to the maternity unit. Appellant was also reported to have

several mental health issues. The man who was alleged at the time to be D.D.’s father,

Jason D., was alleged to have a lengthy criminal record and a history of abusive

treatment of appellant.1

{¶3} The trial court thereupon ordered the child into the temporary custody of

MCCS.

{¶4} A case plan was filed with the trial court on December 6, 2017, with no

objections thereto. D.D. was adjudicated a dependent and neglected child on February

1, 2018. The court ordered her to be maintained in the temporary custody of MCCS.

{¶5} On July 23, 2018, MCCS filed a motion for permanent custody, which was

scheduled for a hearing on December 18, 2018. In the meantime, on November 5, 2018,

the court conducted an annual review hearing; however, appellant did not appear.

1 On February 23, 2018, MCCS notified the trial court that Jason D. had been excluded as the child’s father by genetic testing. Paternity of the child is apparently still unknown. Muskingum County, Case No. CT2019-0025 3

{¶6} At the permanent custody trial on December 18, 2018, appellant again failed

to appear. Following the hearing, the court granted permanent custody of D.D. to MCCS,

as further discussed infra. A written judgment entry was journalized on March 5, 2019.

On April 4, 2019, appellant filed a notice of appeal. She herein raises the following sole

Assignment of Error:

{¶7} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

I.

{¶8} In her sole Assignment of Error, appellant-mother contends the trial court

erred in granting permanent custody of D.D. to the agency. We disagree.

{¶9} R.C. 2151.414(B)(1) states as follows:

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:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, as Muskingum County, Case No. CT2019-0025 4

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, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's

parents.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who

are able to take permanent custody.

(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.

(e) The child or another child in the custody of the parent or parents

from whose custody the child has been removed has been adjudicated an

abused, neglected, or dependent child on three separate occasions by any

court in this state or another state.

{¶10} 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 Muskingum County, Case No. CT2019-0025 5

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.

{¶11} Furthermore, in determining the best interest of the child in permanent

custody cases, R.C. 2151.414(D)(1) states the trial court must consider all relevant

factors, including, but not limited to: (1) the interaction and interrelationship of the child

with the child's parents, siblings, relatives, foster parents and out-of-home providers, and

any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) the child's need

for a legally secure permanent placement.

{¶12} Because custody issues are some of the most difficult and agonizing

decisions a trial judge must make, he or she must have wide latitude in considering all

the evidence and such a decision must not be reversed absent an abuse of discretion.

Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller

(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate court, we are not the trier

of fact; instead, our role is to determine whether there is relevant, competent, and

credible evidence upon which the factfinder could base his or her judgment. Tennant v.

Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing

Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.

{¶13} As noted in our recitation of the facts, the trial court conducted the

permanent custody trial in this matter on December 18, 2018. MCCS called as its

witnesses (1) Cinda Graham from All Well Behavioral Health, (2) MCCS Caseworker

Carly Bates, and (3) D.D.’s foster mother. Appellant was not present for the trial, and her Muskingum County, Case No. CT2019-0025 6

trial attorney did not object to any of the testimony or reports presented by MCCS.2

Where no objection is raised to a line of questioning, an appellant waives all but plain

error. Ralph v. Behr, 5th Dist. Richland No. 16 CA 42, 2017-Ohio-1533, ¶ 31, citing

Harper v. Roberts, 173 Ohio App.3d 560, 2007–Ohio–5726, ¶ 9 (8th Dist. Cuyahoga).

Plain error review is not favored in appeals of civil cases. Kirin v. Kirin, 7th Dist. Mahoning

No. 08 MA 243, 2011–Ohio–663, 2011 WL 497080, ¶ 19, quoting Goldfuss v. Davidson,

79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at paragraph one of the syllabus. To

constitute plain error in a civil case, the error must be “obvious and prejudicial” and “if

permitted, would have a material adverse effect on the character and public confidence

in judicial proceedings.” In re M.H., 5th Dist. Fairfield No. 2016 CA 43, 2017-Ohio-1110,

¶ 24, citing Friedland v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th Dist.).

We will herein proceed under a plain error standard of review.

{¶14} Appellant’s brief at several points criticizes the agency’s handling of this

matter, while ignoring the evidence that appellant did not visit with D.D. after February

2018 (Tr. at 12), and, in her last known contact with the agency in March 2018, had

informed caseworkers that she was not willing to work with them on any services and did

not want to reunify with the child. Tr. at 21. Information was provided to the court at the

permanent custody trial that she had possibly relocated to New York or Florida. Tr. at

22-23. The child’s maternal grandmother was, for a time, assessed for relative

2 The trial court specifically found that appellant and the unknown father were “duly and properly served.” Judgment Entry, March 5, 2019, at 1. Appellant nonetheless makes the assertion in her statement of the case that she did not receive notice of the trial date. See Appellant’s Brief at 5. However, a question of personal jurisdiction may not be raised for the first time on appeal. Trilogy Health Services, LLC v. Frenzley, 5th Dist. Muskingum No. CT2017-0070, 2018-Ohio-1790, ¶ 8, citing In re Bailey Children, 5th Dist. Stark No. 2004CA00386, 2005–Ohio–2981. Muskingum County, Case No. CT2019-0025 7

placement, but the grandmother eventually withdrew from consideration. Tr. at 19.

Evidence was also adduced that appellant had begun her assessments and drug

screens, but then failed to follow through with treatment and did not successfully

complete any objective on her case plan. Tr. at 17. Likewise, Cinda Graham from All

Well Behavioral recalled that after November 28, 2017, appellant “kept cancelling and

not showing” and thus did not complete her recommended substance abuse and mental

health programs. Tr. at 7-8.

{¶15} We note that “*** courts have found an implied exception to mandatory case

planning efforts when those efforts would be futile.” In re Leitwein, 4th Dist. Hocking No.

03CA18, 2004-Ohio-1296, ¶ 30. Appellant essentially now chooses to reprove the

agency in a situation where she ultimately showed no interest in the agency’s

reunification efforts. She seems to fault the caseworker who took over in April 2018 for

not having contact with her, and then resorts to classifying the utilization of this

caseworker as a witness by the agency as “an unbelievable display of mind-numbing

laziness ***.” Appellant’s Brief at 8. Additionally, with no legal support, appellant attempts

to dismiss the entirety of the GAL’s report as inadmissible hearsay. Id.

{¶16} However, in this instance, we are persuaded that the trial court, relying on

R.C. 2151.414(B)(1)(a), 2151.414(D)(1), and 2151.414(E), duly heard the evidence and

rendered a cogent, lawful decision accordingly. Upon review of the record and the

findings of fact and conclusions of law therein, we find no basis to alter the decision of

the trier of fact, and we conclude the grant of permanent custody of D.D. to MCCS was

made in the consideration of the child's best interests, was not against the manifest

weight of the evidence, and did not constitute plain error. Muskingum County, Case No. CT2019-0025 8

{¶17} Appellant's sole Assignment of Error is therefore overruled.

{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,

Juvenile Division, Muskingum County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.

JWW/d 1024