In re K.M.

2022 Ohio 916

• Court: Ohio Court of Appeals
• Decided: March 23, 2022
• Docket: 30117, 30118, 30119
• Status: Published

Opinion

[Cite as In re K.M., 2022-Ohio-916.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: K.M. C.A. Nos. 30117 K.M. 30118 K.M. 30119

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 18 08 0781 DN 18 08 0782 DN 18 12 1248

DECISION AND JOURNAL ENTRY

Dated: March 23, 2022

CARR, Presiding Judge.

{¶1} Appellant, K.M. (“Father”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that terminated his parental rights and placed his three minor

children in the permanent custody of Summit County Children Services Board (“CSB”). This

Court affirms.

I.

{¶2} Father is the biological father of the three children at issue in this appeal: K.M.,

born October 29, 2012; and twin children also with the initials K.M., born July 19, 2018. The trial

court proceedings also involved another child, but that child has another father and is not a party

to this appeal. The children’s mother (“Mother”) voluntarily relinquished her parental rights and

has not appealed the permanent custody judgment. 2

{¶3} This case began when the twins were newborns living with Mother. The older K.M.

was then residing with Father, pursuant to a 2014 court order. There is nothing in the record about

prior agency involvement with the older K.M. The 2014 custody order was apparently entered in

a case filed by Father, who was never married to Mother, to establish his parentage and allocate

parental rights and responsibilities.

{¶4} On August 15, 2018, the twins were removed from Mother’s custody because

Mother was not complying with a voluntary safety plan CSB created because of Mother’s ongoing

problems with substance abuse and domestic violence. The twins were later adjudicated dependent

and placed in the temporary custody of CSB.

{¶5} The older K.M. was removed from Father’s custody during December 2018

because CSB learned that Father also had substance abuse problems and had been charged with

domestic violence and robbery for an alleged offense against the paternal grandfather in a nursing

home. The older K.M. was later adjudicated dependent and placed in the temporary custody of

CSB.

{¶6} In his criminal case, Father entered a guilty plea to the lesser offense of attempted

robbery. Father was convicted of attempted robbery and sentenced to a two-year period of

community control. His community control sanctions included, among other things, his successful

completion of the Community Based Correctional Facility (“CBCF”) program at Oriana House.

Although Father twice tested positive for drugs while in the CBCF program, he successfully

completed the program and was discharged. His treatment counselor in the CBCF program

recommended that Father continue with aftercare treatment for his ongoing drug problem, but

Father did not. Father also refused to submit to drug testing by CSB. 3

{¶7} Because neither parent cooperated with CSB to work on the reunification goals of

the case plan, CSB initially moved for permanent custody of the children during July 2019. The

agency later withdrew the permanent custody motion, however, because a paternal aunt (“Aunt”),

who lived in California, had expressed interest in taking legal custody of the children. Because a

placement with Aunt required that she be investigated through the Interstate Compact on the

Placement for Children, CSB moved to extend temporary custody while Aunt was investigated for

placement.

{¶8} Aunt was approved for placement and the children began living with her on

December 24, 2019. The children were placed in her temporary custody under an order of

protective supervision. CSB later requested, and was granted, a second six-month extension of

temporary custody and protective supervision to allow CSB to pursue a permanent placement with

Aunt.

{¶9} During July 2020, CSB moved to place the children in the legal custody of Aunt,

but it withdrew that motion several months later when the agency learned about allegations that

Aunt had abused other children in her home. The three K.M. children were removed from Aunt’s

custody and placed in the temporary custody of CSB. On November 30, 2020, CSB moved for

permanent custody of the three children.

{¶10} The case proceeded to a final dispositional hearing on CSB’s motion for permanent

custody and on alternative motions for legal custody to Father or Aunt. Following a hearing, the

trial court terminated parental rights and placed K.M., K.M., and K.M. in the permanent custody

of CSB. 4

{¶11} Father appeals and raises five assignments of error. This Court will address his first

two assignments of error together because they both challenge the evidence supporting the trial

court’s permanent custody judgment.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT TERMINATED FATHER’S PARENTAL RIGHTS AS THE TRIAL COURT’S DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT IT IS IN THE CHILDREN’S BEST INTEREST TO BE PLACED IN THE PERMANENT CUSTODY OF [CSB].

{¶12} Father’s first and second assignments of error are that the trial court’s permanent

custody decision was against the manifest weight of the evidence. Before a juvenile court may

terminate parental rights and award permanent custody of a child to a proper moving agency, it

must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the

child is abandoned; orphaned; has been in the temporary custody of the agency for at least 12

months of a consecutive 22-month period; the child or another child of the same parent has been

adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with

either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent

custody to the agency is in the best interest of the child, based on an analysis under R.C.

2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio

St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will “produce in the mind of

the trier of facts a firm belief or conviction as to the facts sought to be established.” (Internal 5

quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶13} In considering whether the juvenile court’s judgment is against the manifest weight

of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.) Eastley

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court

“must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

{¶14} The trial court found that the first prong of the permanent custody test was satisfied

because Father had failed “continuously and repeatedly to substantially remedy” the conditions

that brought his children into agency custody and prevented them from returning to the custody of

either parent. R.C. 2151.414(B)(1)(a); R.C. 2151.414(E)(1). Father does not challenge that

finding.

{¶15} Moreover, the evidence was not disputed that, when CSB moved for permanent

custody more than two years after this case began, Father continued to lack stable housing or

income and was not participating in counseling or drug screening. By the time of the final

dispositional hearing several months later, Father was scheduled for a hearing in his criminal case

for violating the conditions of his community control. Father violated several conditions of his

community control, including failing to submit to drug testing as required and testing positive for

drugs on 10 occasions. Father’s probation officer testified that he would recommend that Father

complete inpatient substance abuse treatment at Oriana House, but Father admitted during his

testimony that he was potentially facing incarceration for a period of up to 15 months. 6

{¶16} Father challenges the trial court’s finding that it was in the best interest of his

children to be placed in the permanent custody of CSB rather than in his legal custody. If

permanent custody was in the children’s best interest, however, legal custody to another adult

necessarily was not. In re D.T., 9th Dist. Summit No. 29876, 2021-Ohio-1650, ¶ 15. When

determining the children’s best interest, the trial court must consider all relevant factors, including:

the interaction and interrelationships of the children, the wishes of the children, their custodial

history, and their need for permanence in their lives and whether such a placement can be achieved

without a grant of permanent custody.1 R.C. 2151.414(D)(1)(a)-(d); see In re R.G., 9th Dist.

Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11.

{¶17} Father was incarcerated during part of this case. Throughout the remainder of the

case, his interaction with the children was limited to weekly in-person or remote visitation. His

visits were always supervised or monitored because he had not complied with the requirements of

the case plan. Although one witness observed that Father’s interaction with the children was

usually good, other witnesses testified that Father’s visits were not positive. For example, the trial

court heard testimony that Father did not interact much with the children; repeatedly threatened

that he would not visit them again when they misbehaved; and tended to escalate their tantrums or

other misbehavior rather than attempt to calm them or redirect their behavior. Moreover, Father

did not consistently attend his scheduled visits with the children.

1 Although the trial court is also required to consider whether any of the factors set forth in R.C. 2151.414(E)(7)-(11) apply, none of those factors are relevant in this case. 7

{¶18} Because the children were not mature enough to express their own wishes about

where to live, the guardian ad litem spoke on their behalf. He opined that permanent custody was

in their best interest because Father lacked stable income and housing and was potentially facing

15 months of incarceration after his probation violation hearing scheduled for a few weeks later.

{¶19} The children’s custodial history further supported an award of permanent custody

to CSB. The older K.M. had lived in Father’s custody for approximately four years before this

case began. The twins had never been in the custody of Father. By the time of the hearing, the

children had been placed out of their parents’ custody for well over two years. During that time,

the twins had lived in five different placements and the older K.M. had lived in three different

homes. All three children needed a legally secure permanent placement.

{¶20} Neither parent was able to provide the children with a stable home and CSB had

been unable to find any suitable relatives who were willing to take legal custody of the children.

Consequently, the evidence supported the trial court’s conclusion that a legally secure permanent

placement would be achieved by placing the children in the permanent custody of CSB.

{¶21} Father has failed to demonstrate that the trial court’s permanent custody decision

was against the manifest weight of the evidence. His first and second assignments of error are

overruled.

ASSIGNMENT OF ERROR III

THE COURT ABUSED ITS DISCRETION IN ALLOWING THE TESTIMONY OF WITNESSES WHO WERE NOT PROPERLY DISCLOSED OVER OBJECTIONS.

{¶22} Father’s third assignment of error is that the trial court erred in allowing Aunt to

call certain witnesses to testify because she did not comply with the trial court’s order that all

parties file their witness lists at least seven days before the hearing. The record reveals that Aunt 8

filed an unsigned witness list less than seven days before the hearing and, for that reason, both

Father and CSB objected to her witnesses testifying at the permanent custody hearing.

{¶23} A trial court has broad discretion in the admission of evidence. State v. Maurer, 15

Ohio St.3d 239, 265 (1984). This Court should not reverse its decision to admit evidence unless

the trial court clearly abused its discretion, and the party challenging the admission was materially

prejudiced by the evidence. Id. Father asserts that the trial court abused its discretion by allowing

Aunt’s witnesses to testify. He relies on Juv.R. 24(C), which provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a person has failed to comply with [a discovery order] the court may grant a continuance, prohibit the person from introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

{¶24} The purpose of the discovery rules is to “prevent surprise and the secreting of

evidence favorable to one party” in order to “produce a fair trial.” Lakewood v. Papadelis, 32

Ohio St.3d 1, 3 (1987). When deciding whether to impose a sanction for a discovery violation,

the trial court must “inquire into the circumstances surrounding” the violation and impose the

“least severe sanction that is consistent with the purpose of the rules of discovery.” Id. at paragraph

two of the syllabus. In this case, Aunt was representing herself pro se from California and

explained at the hearing that she had tried to comply with the court’s rules and orders as best she

understood.

{¶25} Father’s argument against the admissibility of Aunt’s evidence is based on his lack

of notice that these witnesses would testify and the potential prejudice that their testimony had on

his case. Father cites to this Court’s decision in In re N.K., 9th Dist. Summit No. 29074, 2019-

Ohio-371, ¶ 23, however, in which we rejected a similar argument because the appellant did not

request a continuance of the hearing or a recess to enable his counsel to familiarize himself with

recently disclosed evidence to prepare to defend against it. Although Juv.R. 24(C) explicitly gave 9

the trial court discretion to continue the hearing, Father did not request a continuance of the

hearing, “which could have avoided any prejudice that might have resulted from a lack of prior

notice about the[se] witness[es].” In re L.P., 9th Dist. Summit No. 27792, 2015-Ohio-4164, ¶ 25,

citing State v. Riddle, 3d Dist. Defiance No. 4-02-18, 2003-Ohio-478, ¶ 17. Moreover, Father fails

to point to any specific evidence that was admitted through the testimony of Aunt’s witnesses to

demonstrate how it had any prejudicial impact on his case.

{¶26} Consequently, Father has failed to demonstrate that the trial court abused its

discretion by allowing Aunt’s witnesses to testify. Father’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS DISCRETION BY INCLUDING DETRIMENTAL AND PREJUDICIAL INFORMATION REGARDING FATHER IN ITS JOURNAL ENTRY OUTSIDE THE SCOPE OF THE PROCEEDINGS.

{¶27} Father’s fourth assignment of error challenges the trial court’s consideration of a

letter written by Aunt that was attached to a “notice” filed by CSB in May 2020 that Aunt and

Father were having problems communicating and conducting Father’s remote visitations with the

children. Aunt’s letter set forth many allegations about how Father had interacted inappropriately

with her and/or the children while the children resided in her home.

{¶28} Although CSB asserts that Father waived or forfeited any objection to the letter on

appeal, this Court disagrees. Shortly after Aunt’s letter was filed with the trial court, Father’s

counsel moved to strike the letter and requested an evidentiary hearing on the issue. An evidentiary

review hearing was held before a magistrate, during which the parties testified under oath about

these allegations. The magistrate considered the dispute between Father and Aunt based on their

sworn testimony. Its resulting order explicitly stated that Father’s motion to strike Aunt’s letter 10

from the record remained pending. The trial court apparently never ruled on Father’s motion to

strike, however.

{¶29} Even though Father has not forfeited this issue on appeal, he has failed to

demonstrate any prejudicial error from the trial court’s reference to Aunt’s letter. Although the

trial court summarized some of the allegations in Aunt’s 2020 letter in its final judgment entry,

there is nothing to suggest that the court relied on the truth of Aunt’s allegations or that it held

those allegations against Father. In fact, the trial court referred to the allegations in Aunt’s letter

after it explicitly found that Aunt’s testimony about the best interest of the children lacked

credibility. The trial court explained that Aunt’s position toward the suitability of Father had

“wavered” throughout the three-day hearing, with Aunt’s testimony ranging from extreme

criticism of Father to ultimate support of his legal custody motion on the last day of the hearing.

Within the context of its 17-page judgment entry, the trial court referred to the allegations in Aunt’s

letter from one year earlier to support its conclusion that it would assign little or no weight to

Aunt’s opinion because her position toward Father had fluctuated throughout this case.

{¶30} Given the context within which the trial court referenced Aunt’s letter and the

court’s explicit finding that Aunt lacked credibility, there is nothing in the trial court’s judgment

to suggest that the court accepted Aunt’s unsworn allegations as true or held them against Father

in any way. Therefore, Father has failed to demonstrate that the trial court’s reference to Aunt’s

letter prejudiced his case. His fourth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE [TRIAL] COURT ABUSED ITS DISCRETION BY ADMITTING EXHIBIT 1 INTO EVIDENCE OVER OBJECTION.

{¶31} Father’s final assignment of error is that the trial court abused its discretion by

admitting CSB’s Exhibit 1 into evidence. CSB introduced its Exhibit 1, Father’s counseling 11

records from Coleman Professional Services, and his counselor from Coleman attempted to

authenticate the exhibit while she testified. Father objected to the admission of Exhibit 1 multiple

times and, each time, Father’s counselor gave additional testimony, to explain that the records

were accurate.

{¶32} Father argues that CSB did not properly authenticate Exhibit 1 as his complete and

accurate counseling records because his counselor identified the exhibit via Zoom

videoconference. Father does not assert that the records were not authentic or that they reflected

any false or nonrelevant information, but only that their admission did not technically comply with

the rules of evidence. Moreover, he has failed to point to any prejudicial evidence in the records

that had not already been admitted, without any objection, through the testimony of his counselor

at Coleman. Therefore, “even if Father can demonstrate any technical error in establishing that

these records were authentic or complete, he has failed to argue or demonstrate that there was any

resulting prejudice to his defense.” In re F.B., 9th Dist. Summit Nos. 28960 and 28985, 2019-

Ohio-1738, ¶ 44. Father’s fifth assignment of error is overruled.

III.

{¶33} Father’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 12

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES:

DANIEL R. BACHE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

PAMELA ANN HAWKINS, Attorney at Law, for Appellee.

NEIL P. AGARWAL, Guardian ad Litem.