In re R.D.

2021 Ohio 3780

• Court: Ohio Court of Appeals
• Decided: October 25, 2021
• Docket: CA2021-05-017 CA2021-05-018
• Status: Published

Opinion

[Cite as In re R.D., 2021-Ohio-3780.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE: :

R.D., et al. : CASE NOS. CA2021-05-017 CA2021-05-018 : OPINION : 10/25/2021

:

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. 2018JC05107; 2018JC05108

Denise S. Barone, for appellant.

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.

Matthew V. Faris, for Father.

Andrew J. Helmes, guardian ad litem.

S. POWELL, P.J.

{¶ 1} Appellant ("Mother") appeals the decision of the Clermont Court of Common

Pleas, Juvenile Division, granting permanent custody of two of her children, R.D. and S.D., Clermont CA2021-05-017 & -018

to appellee, Clermont County Department of Job and Family Services ("CCDJFS"). For the

reasons outlined below, we affirm the juvenile court's decision.

The Parties

{¶ 2} Mother is the biological mother of the two children at issue in this case, R.D.,

born on July 24, 2006, and S.D., born on July 25, 2008. R.D.'s and S.D.'s biological father

("Father") did not appeal the juvenile court's decision granting permanent custody to

CCDJFS and is not a party to this appeal.

Facts and Procedural History

{¶ 3} On August 31, 2018, CCDJFS filed separate complaints alleging R.D. and

S.D. were neglected children. In support of its complaints, CCDJFS alleged that it had

received a report on July 6, 2018 claiming Father's home where R.D. and S.D. lived lacked

"adequate food, running water, and electricity for the family" and that Father was using

"illegal substances, specifically Meth." CCDJFS also alleged that a subsequent

investigation into this report revealed that Father's home was without electricity, but that the

home did "currently have running water." CCDJFS further alleged that this investigation

revealed that Father "was accessing community resources to supply the family with food"

and that Father had tested positive for methamphetamine and amphetamine. CCDJFS

additionally alleged, in pertinent part, the following:

An out of home safety plan was put into place on 7/17/18. Since 7/17/18, [t]hree safety plans have been attempted with the family but have all disrupted. There are no other safety plan options at this time. The agency attempted to complete a safety plan with the children's biological mother, [Mother], but was unsuccessful due to her being dishonest about who was residing in her home.

{¶ 4} After receiving CCDJFS' complaint, the juvenile court granted CCDJFS

emergency temporary custody of R.D. and S.D. The juvenile court also appointed a

guardian ad litem for R.D. and S.D.

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{¶ 5} On October 2, 2018, the juvenile court adjudicated R.D. and S.D. as neglected

children. This adjudication was based on Mother's and Father's admission that R.D. and

S.D. were, in fact, neglected. Two weeks later, on October 26, 2018, the juvenile court

issued a dispositional decision granting temporary custody of R.D. and S.D. to CCDJFS.

The record indicates that this decision was based on Mother's and Father's agreement that

CCDJFS should, at that time, receive temporary custody of their children. Mother did not

appeal from the juvenile court's adjudicatory decision finding R.D. and S.D. neglected

children nor did Mother appeal the juvenile court's decision granting temporary custody to

CCDJFS.

{¶ 6} On October 29, 2019 and again on February 25, 2020, the juvenile court

extended CCDJFS' temporary custody of R.D. and S.D. Then, on July 27, 2020, CCDJFS

moved for permanent custody of R.D. and S.D. To support its motions for permanent

custody, CCDJFS alleged that both R.D. and S.D. had been in its temporary custody for 12

or more months of a consecutive 22-month period. CCDJFS also alleged that R.D. and

S.D. could not or should not be placed with either Mother or Father within a reasonable

time. CCDJFS further alleged that R.D.'s and S.D.'s best interests would be served by an

award of permanent custody to CCDJFS.

{¶ 7} On October 16, 2020, a joint hearing on CCDJFS' motions for permanent

custody was held before a juvenile court magistrate. During this hearing, the magistrate

heard testimony from a total of seven witnesses. This included testimony from both Mother

and Father. The magistrate also heard testimony from the current CCDJFS caseworker

assigned to R.D.'s and S.D.'s cases, as well as R.D.'s and S.D.'s guardian ad litem.

{¶ 8} As part of this testimony, it was revealed that S.D. was at that time

hospitalized at an inpatient crisis stabilization unit receiving treatment for a variety of severe

mental health issues, including self-harming behaviors like cutting and head-banging. The

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record indicates that S.D.'s mental health issues stemmed from the trauma caused by the

physical and sexual abuse perpetrated on her by one of her older brothers, L.D.1 The

testimony also revealed that R.D. was likewise receiving treatment at a nearby residential

treatment facility for his own mental health issues stemming from that same physical and

sexual abuse L.D. had inflicted upon S.D. This includes R.D. receiving treatment for

diagnosed post-traumatic stress disorder and disruptive mood dysregulation disorder.

{¶ 9} The testimony further revealed that S.D.'s older brother, L.D., the same older

brother who had physically and sexually abused S.D., was at that time residing in Mother's

home. The record indicates that this was the same home where R.D. and S.D. would also

be living if they were placed into Mother's care. The testimony additionally revealed that

Mother's paramour, the father of Mother's youngest child, J., was also residing at Mother's

home when he was not otherwise staying with friends. This was in addition to the testimony

indicating Mother's paramour has anger management issues, as well as Mother's paramour

having a prior felony drug conviction.

{¶ 10} On November 30, 2020, the magistrate issued two separate decisions

granting permanent custody of R.D. and S.D. to CCDJFS. The following week, on

December 4, 2020, Mother filed objections to the magistrate's decisions. Mother then

supplemented her objections on January 19, 2021. Mother's objections included claims

that the magistrate's decisions granting permanent custody of R.D. and S.D. to CCDJFS

were not in R.D.'s and S.D.'s best interests. Mother also argued the magistrate's decisions

granting permanent custody to CCDJFS were against the manifest weight of the evidence.

{¶ 11} On January 19, 2021, the juvenile court held a hearing on Mother's objections.

1. The record indicates L.D. spent approximately 12-to-18 months at a residential treatment facility where he received sexual abuse and mental health counseling after he was adjudicated a delinquent child for committing an act that if charged as an adult would constitute a fourth-degree felony aggravated assault on the victim, S.D. -4- Clermont CA2021-05-017 & -018

Following this hearing, on April 21, 2021, the juvenile court issued two separate decisions

overruling Mother's objections in their entirety. In so holding, the juvenile court found the

testimony offered by CCDJFS' witnesses in support of its motions for permanent custody

was credible. This included the testimony elicited from the current CCDJFS caseworker

assigned to R.D.'s and S.D.'s cases, as well as R.D.'s and S.D.'s guardian ad litem. The

juvenile court also found that there was "substantial credible evidence" that was both "clear"

and "convincing" that it was in R.D.'s and S.D.'s best interest to grant permanent custody

to CCDJFS rather than return the children to either Mother's or Father's care.

Appeal

{¶ 12} Mother now appeals the juvenile court's decisions granting permanent

custody of R.D. and S.D. to CCDJFS. To support her appeal, Mother raises four

assignments of error for review. For ease of discussion, Mother's second and third

assignments of error will be addressed together.

Permanent Custody Standard of Review

{¶ 13} Before a mother's constitutionally protected liberty interest in the care and

custody of her children may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.

Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Because the state is required to prove

the statutory standards for permanent custody have been met by clear and convincing

evidence, "[a]n appellate court's review of a juvenile court's decision granting permanent

custody is generally limited to considering whether sufficient credible evidence exists to

support the juvenile court's determination." In re D.P., 12th Dist. Butler No. CA2020-07-

074, 2020-Ohio-6663, ¶ 13, citing In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and

CA2014-06-131, 2014-Ohio-5009, ¶ 6; and In re A.S., 12th Dist. Butler Nos. CA2019-05-

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071, CA2019-05-072, and CA2019-05-073, 2019-Ohio-4127, ¶ 19. "This court will therefore

reverse a juvenile court's decision to grant permanent custody only if there is a sufficient

conflict in the evidence presented." In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and

CA2019-03-002, 2019-Ohio-3143, ¶ 17, citing In re K.A., 12th Dist. Butler No. CA2016-07-

140, 2016-Ohio-7911, ¶ 10. "However, even if the juvenile court's decision is supported by

sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is

against the manifest weight of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-

04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164,

2016-Ohio-72, ¶ 19.

{¶ 14} In determining whether a juvenile court's decision to grant a motion for

permanent custody is against the manifest weight of the evidence, an appellate 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 trial ordered.'" In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru

CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence,

there is a presumption in favor of the findings made by the finder of fact and evidence

susceptible to more than one construction will be construed to sustain the verdict and

judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15, citing

In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238,

2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21. "We are especially mindful of this in

permanent custody cases." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-

1000, ¶ 26, citing In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-4911, ¶

13 ("[t]he presumption in weighing the evidence is in favor of the finder of fact, which we

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are especially mindful of in custody cases").

Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER BY

PROCEEDING TO A PERMANENT CUSTODY TRIAL WHEN THE MOTHER HAD NOT

BEEN PROPERLY SERVED WITH A COPY OF THE STATE'S MOTION FOR

PERMANENT CUSTODY.

{¶ 16} In her first assignment of error, Mother argues the juvenile court magistrate

erred by proceeding with the permanent custody hearing even though she was not properly

served with a copy of CCDJFS' motions for permanent custody until the day the permanent

custody hearing was held, October 16, 2020. Mother supports this argument by claiming

this "cannot possibly be deemed good service" and that it represents a clear violation of

R.C. 2151.414(A)(1). We find no merit to Mother's claims.

{¶ 17} Pursuant to R.C. 2151.414(A)(1), upon the filing of a motion for permanent

custody, "the court shall schedule a hearing and give notice of the filing of the motion and

of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the

action and to the child's guardian ad litem." The notice requirement found in R.C.

2151.414(A)(1) "ensures the juvenile court has personal jurisdiction over the parents." In

re D.R., 5th Dist. Licking Nos. 2020 CA 00024 and 2020 CA 00025, 2020-Ohio-4025, ¶ 22,

citing In re Kincaid, 4th Dist. Lawrence No. 00CA3, 2000 Ohio App. LEXIS 5132, *10 (Oct.

27, 2000). Whether a parent was properly served as required by R.C. 2151.414(A)(1),

"raises an issue of personal, rather than subject matter jurisdiction." In re A.M., 9th Dist.

Summit No. 26141, 2012-Ohio-1024, ¶ 13. Personal jurisdiction over a party may be

obtained through several different ways. This includes "through proper service of process"

and "by the voluntary appearance of the party * * *." In re S.S., 9th Dist. Wayne No.

10CA0010, 2010-Ohio-6374, ¶ 43, citing Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984).

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"'An objection to personal jurisdiction is waived by a party's failure to assert a challenge to

such jurisdiction at [his or her] first appearance in the case.'" In re K.M., 12th Dist. Butler

No. CA2019-01-015, 2019-Ohio-1833, ¶ 32, quoting In re A.L.W., 11th Dist. Portage Nos.

2011-P-0050 thru 2011-P-0052, 2012-Ohio-1458, ¶ 37.

{¶ 18} Despite Mother's claims, the record indicates that Mother was properly served

with a copy of CCDJFS' motions for permanent custody in accordance with R.C.

2151.414(A)(1) prior to when the permanent custody hearing was held. This includes

service of CCDJFS' motions for permanent custody on Mother by both regular and certified

mail, as well as by personal service on Mother directly. For Mother to now claim that she

was not properly served with copies of CCDJFS' motions for permanent custody until the

day the permanent custody hearing was held is simply not true. However, even if we were

to assume Mother was correct in her assertion that she was not properly served, which she

is not, the record nevertheless establishes that Mother, accompanied by her counsel,

appeared before the magistrate for the permanent custody hearing and fully participated in

the permanent custody hearing regarding both of her children at issue, R.D. and S.D. This

includes Mother testifying at the permanent custody hearing as part of her own case-in-

chief.

{¶ 19} The record also establishes that Mother never objected to the magistrate

going ahead with the permanent custody hearing due to any alleged violation of the notice

requirement found in R.C. 2151.414(A)(1) either before, during, or after the permanent

custody hearing was held. Under these circumstances, and when considering Mother does

not argue that she suffered any resulting prejudice, we find no error in the magistrate's

decision to proceed with permanent custody hearing as scheduled. This is because, as

noted above, Mother waived any challenge to the juvenile court's personal jurisdiction over

her by appearing at, and fully participating in, the permanent custody hearing. See, e.g., In

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re G.D., 9th Dist. Summit No. 27855, 2015-Ohio-4669, ¶ 19 (appellant waived any challenge

to the juvenile court's personal jurisdiction in a permanent custody proceeding where

appellant "did not object to service, appeared at the permanent custody hearing, and fully

participated in the hearing"); see also In re P.O., 11th Dist. Geauga No. 2015-G-0028, 2015-

Ohio-4774, ¶ 23 (by failing to challenge a juvenile court's jurisdiction over appellant's person

in a permanent custody proceeding appellant "forfeited any such challenge on appeal").

Accordingly, because we find no error in the juvenile court magistrate's decision to proceed

with the permanent custody hearing as scheduled, Mother's first assignment of error lacks

merit and is overruled.

Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER BY

FAILING TO GRANT HER REQUEST TO HAVE THE CHILDREN RETURNED TO HER

CARE.

Assignment of Error No. 3:

{¶ 21} THE TRIAL COURT ERRED AS A MATTER OF LAW BY AWARDING

PERMANENT CUSTODY OF THE CHILDREN TO CLERMONT COUNTY DEPARTMENT

OF JOB AND FAMILY SERVICES.

{¶ 22} In her second and third assignments of error, Mother argues the juvenile court

erred by granting CCDJFS permanent custody of R.D. and S.D. rather than returning R.D.

and S.D. to her care. We disagree.

{¶ 23} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

makes findings pursuant to a two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-

248, 2014-Ohio-2580, ¶ 9. The juvenile court must first find the grant of permanent custody

to the agency is in the best interest of the child, utilizing, in part, the factors set forth in R.C.

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2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21.

The juvenile court must then find any of the following apply: (1) the child is abandoned; (2)

the child is orphaned; (3) the child has been in the temporary custody of the agency for at

least 12 months of a consecutive 22-month period; (4) where the preceding three factors

do not apply, the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent; or (5) the child or another child in the custody of

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

abused, neglected, or dependent child on three separate occasions. In re C.B., 12th Dist.

Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10, citing R.C. 2151.414(B)(1)(a) to (e).

Only one of these findings must be met to satisfy the second prong of the two-part

permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-

3188, ¶ 12.

{¶ 24} Mother does not dispute the juvenile court's decisions finding R.D. and S.D.

had been in the temporary custody of CCDJFS for at least 12 months of a consecutive 22-

month period prior to when CCDJFS filed its two motions for permanent custody. The only

issue, therefore, is whether the juvenile court erred by finding it was in R.D.'s and S.D.'s

best interest to grant permanent custody to CCDJFS.

{¶ 25} When considering the best interest of a child in a permanent custody case,

such as the case here, the juvenile court is required under R.C. 2151.414(D)(1) to consider

certain enumerated factors. In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and

CA2018-04-038, 2018-Ohio-3341, ¶ 32. Pursuant to R.C. 2151.414(D)(1)(a) thru (e), these

factors include, but are not limited to: (1) 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; (2) the wishes of the child, as

expressed directly by the child or through the child's guardian ad litem; (3) the custodial

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history of the child; (4) 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; and (5) whether any of the factors listed in R.C. 2151.414(E)(7) thru (11) apply

in relation to the parents and child. In re J.C., 12th Dist. Brown No. CA2017-11-015, 2018-

Ohio-1687, ¶ 22. "The juvenile court may also consider any other factors it deems relevant

to the child's best interest." In re A.J., 12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-

593, ¶ 24. No one factor is given greater weight than the others. In re S.H., 12th Dist.

Butler Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 30, citing In re G.W.,

12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 49. "Nor is any one factor

dispositive." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-1000, ¶ 29,

citing In re Bailey, 11th Dist. Geauga No. 2001-G-2337, 2001 Ohio App. LEXIS 3294, *17

(July 20, 2001).

{¶ 26} Within its two separate decisions regarding R.D. and S.D., the juvenile court

made numerous factual findings as it relates to the relevant best interest factors set forth

above. For instance, with respect to R.D.'s and S.D.'s interactions and interrelationships

with those who may significantly affect their lives, the juvenile court found that both R.D.

and S.D. were bonded with Mother, as was Mother bonded with R.D. and S.D. The juvenile

court also found that R.D. believes that he and S.D. need to "stick together due to their

strong ties" as brother and sister. The juvenile court further found that R.D.'s and S.D.'s

maternal grandparents expressed a willingness to provide a home for R.D. and S.D., but

that R.D.'s and S.D.'s maternal grandparents home study failed "due to their self-reported

use of marijuana." The juvenile court additionally found that neither R.D. nor S.D.

developed any attachments while in foster care or their respective residential treatment

facilities.

{¶ 27} Next, in regard to R.D.'s and S.D.'s wishes, the juvenile court found that both

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R.D. and S.D. had expressed their desire to return to Mother's and Father's care, with R.D.'s

preferred choice being Father and S.D.'s preferred choice being Mother. The juvenile court

also found that both R.D. and S.D. would rather be placed with their maternal grandparents

instead of being adopted or returned to foster care if they could not be reunited with Mother

and Father. The juvenile court further found that R.D.'s and S.D.'s guardian ad litem had

recommended that permanent custody be granted to CCDJFS. As stated in the guardian

ad litem's report and recommendation, this is because:

The only circumstance in which this GAL could foresee the children being safely placed with Mother is if the older sibling [L.D.] was out of her home. While Mother did indicate that he will be turning eighteen in December, he will not finish high school until 2021. It seems unlikely that he would be able to achieve independent living prior to completion of high school.

{¶ 28} The guardian ad litem also stated:

This GAL's concerns with the children being exposed to the older sibling is not just a threat of physical harm – they both have been working through significant mental trauma and still appear to have a long way to go to process, understand, and cope with all they have been through to date. Nothing that could jeopardize that progress they have been able to make to this point can be seen as in their best interest. It is not clear when, or if, they can safely be placed in the presence of their older sibling again.

{¶ 29} Additionally, as it relates to R.D.'s and S.D.'s custodial history, the juvenile

court found R.D. and S.D. had been in the temporary custody of CCDJFS for at least 12

months of a consecutive 22-month period. The juvenile court found that during this time

R.D. and S.D. had been placed in ten different settings since the family first had contact

with CCDJFS. The juvenile court noted that this included several different foster homes

and residential treatment facilities.

{¶ 30} Next, with respect to R.D.'s and S.D.'s need for a legally secure permanent

placement, the juvenile court determined that this could only be achieved with a grant of

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permanent custody to CCDJFS. In so finding, the juvenile court initially stated in regard to

Mother:

The [children's] mother has independent housing, but the existing occupants make it unrealistic for the [children] to return to [their] mother's household. The mother rents a three- bedroom house. The occupants and frequent overnight guests in her home include the parents' oldest son [L.D.], who sexually abused S.D.; [L.D.'s girlfriend]; [J.], the mother's three-year-old daughter, and [B.C.], mother's boyfriend and father of [J.]

{¶ 31} The juvenile court then stated that it had found R.D. was "unsure of how he

would feel being placed back in a home with his oldest brother [L.D.]," whereas "[d]ealing

with all these individuals would undoubtedly be a struggle for S.D." The juvenile court also

stated that Mother had "attempted to assure" the juvenile court that she could provide for

the "safety of all her children if R.D. and S.D. were placed back in her home" given her

confidence that L.D. was "unlikely to reoffend." The juvenile court, however, found Mother's

attitude "appears to minimize the psychological effect it may have on R.D. and S.D." to be

placed back in the same home as L.D. This is because, as the juvenile court noted, R.D.'s

and S.D.'s "mental health needs to be taken as seriously as their physical safety."

{¶ 32} The juvenile court further noted Mother's concern that R.D. and S.D. had been

"in ten different placements since 2018," as well as Mother's argument that "the Agency is

unable to provide a legally secure permanent placement for the children." The juvenile

court, however, found Mother's argument "overlooks the fact that the majority of these

placement have [been] disrupted due to the children's aggressive behavior and their

behavioral/mental health needs," as well as the fact that these needs "developed while [R.D.

and S.D. were] living with [their] family." The juvenile court additionally found it "apparent"

that R.D. and S.D. "will not have the ability to enjoy any consistency unless and until they

receive enough treatment to stabilize their condition[s]." The juvenile court then noted

"[t]reatment for mental health and behavioral issues must be the first priority in order for

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[R.D. and S.D.] to have any possibility of maturing into stable young adults."

{¶ 33} The juvenile court next stated that R.D.'s and S.D.'s serious mental health and

behavioral issues "make it impossible to complete a case plan for [their] reunification within

the two year time frame allowed by statute." The juvenile court explained that this is

because "[i]t is not feasible for [them] to remain in a treatment facility and be returned to the

custody of a parent." (Emphasis sic.) The juvenile court then stated:

Following residential treatment, [they] will need to "step down" to a therapeutic foster home, which will provide a high level of care, structure and supervision to fit [their] needs. If custody was returned to a parent, [R.D. and S.D.] would not have the benefit of stepping down to a therapeutic foster home. An abrupt transition straight from a residential facility to mother's home would not be advisable.

{¶ 34} This was in addition to the juvenile court finding Mother was not then receiving

the mental health treatment that was recommended as a result of Mother's mental health

assessment. The juvenile court then noted that it was suggested that Mother be assessed

again, but that "this was not accomplished prior to trial. Thus, the Court has no way to

ascertain whether the mother is still in need of counseling." The juvenile court noted that

this was particularly troublesome in this case because R.D. and S.D. were going to need

support wherever they were ultimately placed. So, as noted by the juvenile court, "[i]f the

mother is not going to get the mental health assistance she needs, she may very well not

have the ability to provide emotional support for her children."

{¶ 35} The juvenile court also noted that it had "no way of knowing that the mother

will be able to withstand the pressure of having two children with behavioral issues returning

to her home, especially considering the conflict that could arise with other members of the

household," i.e., S.D.'s abuser, L.D., and Mother's paramour. The juvenile court further

noted its concern that Mother had "discontinued her own counseling because she felt it was

inconvenient and ineffective." The juvenile court noted that this "raises doubts" as to

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whether Mother "would continuing counseling for [R.D. and S.D.] if she felt that [R.D.'s and

S.D.'s] counseling was ineffective or inconvenient." The juvenile court then concluded this

factor by stating:

The Court does not take it lightly that the [children prefer] to be returned to [their] parents. Yet one parent has no home to offer, and the other has inhabitants that could act as triggers for [the children]. This does not bode well for stability or consistency. The environment quite possibly could cause the [children] to regress into old patterns of behavior. Instead, with therapy and a more positive environment in the future, [the children] may mature into * * * responsible member[s] of the community. This goal cannot be achieved without a grant of permanent custody to the Agency which has demonstrated its commitment to providing [the children] with the treatment necessary for [their] mental and behavioral health.

{¶ 36} Finally, with respect to any of the factors contained in R.C. 2141.414(E)(7)

thru (11), the juvenile court determined that none of these factors applied to the case at bar.

{¶ 37} As noted above, in her second and third assignments of error, Mother argues

the juvenile court erred by granting permanent custody to CCDJFS rather than returning

R.D. and S.D. to her care. To support this argument, Mother claims that she presented

sufficient evidence to indicate R.D. and S.D. "must be returned to her legal custody and

care." Mother also claims that the juvenile court's decisions granting permanent custody to

CCDJFS were "based on insufficient evidence, contrary to their best interests, and contrary

to the weight of the evidence presented." According to Mother, this is because the juvenile

court "minimized the strength" of R.D.'s and S.D.'s bond with her, as well as the efforts that

Mother had made to remain engaged in R.D.'s and S.D.'s lives "despite difficult

circumstances." Therefore, given the "terrible job the agency was doing of taking care of

her precious children," Mother argues that it was error for the juvenile court to grant

permanent custody of R.D. and S.D. to CCDJFS because "she alone can provide a legally

secure placement for the children."

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{¶ 38} Despite Mother's claims, however, we find no error in the juvenile court's

decisions granting permanent custody of R.D. and S.D. to CCDJFS. This holds true even

when considering R.D.'s and S.D.'s strong bond with Mother for "this is but one factor to be

considered when determining the best interest of a child in a permanent custody

proceeding." In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 48, citing

In re S.M., 12th Dist. Warren No. CA2018-07-076, 2018-Ohio-4654, ¶ 25 (strong bond

between mother and child is but one factor to be considered when determining the best

interest of a child); In re A.T.-D., 12th Dist. Butler Nos. CA2015-03-059, CA2015-03-060,

and CA2015-04-068, 2015-Ohio-2579, ¶ 30 (clear bond between father, grandmother, and

child is but one factor to consider when determining the best interest of a child); In re S.H.,

12th Dist. Butler Nos. CA2014-12-259 and CA2015-01-008, 2015-Ohio-1763, ¶ 24 (strong

bond between mother, grandmother, and child is but one factor to consider when

determining best interest of a child); In re I.B., 12th Dist. Butler No. CA2014-12-244, 2015-

Ohio-1344, ¶ 20 (strong bond between mother and child is but one factor to consider when

determining the best interest of a child). This same holds true as it relates to Mother's

efforts to remain engaged with R.D.'s and S.D.'s lives for "there is not one element that is

given greater weight than the others." In re D.R., 12th Dist. Butler No. CA2009-01-018,

2009-Ohio-2805, ¶ 14, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.

{¶ 39} That is to say, given the record properly before this court, which includes

evidence that Mother may not be willing and/or able to provide the support that R.D. and

S.D. need to cope with their various mental health issues, returning R.D. and S.D. to

Mother's care would an unnecessary gamble with R.D.'s and S.D.'s lives. This is particularly

true here as it relates to S.D. given her troubling history of self-harming behavior, which

includes cutting and head banging. But, as this court has stated previously, "[a] child's life

is not an experiment that can be left to chance." In re G.W. at ¶ 52. That is, stated

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differently, "'[t]he law does not require the court to experiment with a child's welfare to see

if the child will suffer great detriment or harm.'" (Internal brackets omitted.) In re B.C., 12th

Dist. Warren Nos. CA2018-03-024 and CA2018-03-027, 2018-Ohio-2673, ¶ 30, quoting In

re R.S.-G., 4th Dist. Athens No. 15CA2, 2015-Ohio-4245, ¶ 53. The law instead requires

the juvenile court act in a manner that, to the extent possible, serves the best interest of the

child. "'A child's best interests are served by the child being placed in a permanent situation

that fosters growth, stability, and security.'" In re D.E., 12th Dist. Warren Nos. CA2018-03-

035 and CA2018-04-038, 2018-Ohio-3341, ¶ 60, quoting In re Keaton, 4th Dist. Ross Nos.

04CA2785 and 04CA2788, 2004-Ohio-6210, ¶ 61.

{¶ 40} Simply stated, the juvenile court found granting permanent custody of R.D.

and S.D. to CCDJFS gave them the best opportunity to grow and develop into responsible

members of the community. The juvenile court found the same would not be true if R.D.

and S.D. were returned to Mother's care given the other inhabitants living in Mother's home,

L.D. and Mother's paramour, both of whom the juvenile court found could act as "triggers"

that had the potential to cause R.D. and S.D. to regress "into old patterns of behavior." We

find no error in the juvenile court's decision. We also find no error in the juvenile court's

decision finding R.D's and S.D.'s "mental health needs to be taken as seriously as their

physical safety," nor do we find any error in the juvenile court's decision finding that R.D.'s

and S.D.'s "[t]reatment for mental health and behavior health issues must be the first priority

in order for them to have any possibility of maturing into stable young adults." Therefore,

because it is R.D.'s and S.D.'s best interest that is controlling rather than Mother's own

desires, the juvenile court's decisions granting permanent custody of R.D. and S.D. to

CCDJFS was not error. Accordingly, finding no error in the juvenile court's decisions

granting permanent custody of R.D. and S.D. to CCDJFS rather than returning R.D. and

S.D. to Mother's care, Mother's second and third assignments of error lack merit and are

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overruled.

Assignment of Error No. 4:

{¶ 41} HAD TRIAL COUNSEL BEEN EFFECTIVE, HE WOULD HAVE

PERSUADED THE COURT TO DISMISS THE CASE IN ITS ENTIRETY AND AWARD

CUSTODY OF THE CHILDREN TO THE MOTHER.

{¶ 42} In her fourth assignment of error, Mother argues that she received ineffective

assistance of counsel. We disagree.

{¶ 43} Generally, "a claim for ineffective assistance of trial counsel is not a proper

ground on which to reverse the judgment of a lower court in a civil case that does not result

in incarceration in its application." In re T.W., 12th Dist. Warren No. CA2017-06-079, 2017-

Ohio-8268, ¶ 15, citing Rafeld v. Sours, 5th Dist. Ashland No. 14 COA 006, 2014-Ohio-

4242, ¶ 15. There is an exception, however, "for such claims in civil permanent custody

appeals." Id., citing In re Tyas, 12th Dist. Clinton No. CA2002-02-010, 2002-Ohio-6679, ¶

4. That is to say, "[a] parent is entitled to the effective assistance of counsel in cases

involving the involuntary termination of his or her parental rights." In re B.J. & L.J., 12th

Dist. Warren Nos. CA2016-05-036 and CA2016-05-038, 2016-Ohio-7440, ¶ 68. This is

because "parental rights involve a fundamental liberty interest, procedural due process,

which includes the right to effective assistance of counsel * * *." In re Tyas, citing In re

Heston, 129 Ohio App.3d 825, 827 (1st Dist.1998).

{¶ 44} "In determining whether counsel was ineffective in a permanent custody

hearing, a reviewing court must apply the two-tier test of Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052 (1984)." In re C.S., 12th Dist. Warren No. CA2018-07-080, 2018-Ohio-

4786, ¶ 33. The two-tier Strickland test requires the appellant to establish: "(1) that his [or

her] trial counsel's performance was deficient, and (2) that such deficiency prejudiced the

defense to the point of depriving the appellant of a fair trial." In re G.C., 12th Dist. Butler

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Nos. CA2016-12-237 thru CA2016-12-240, 2017-Ohio-4226, ¶ 24, citing Strickland at 687-

688. To satisfy the two-tier test of Strickland, therefore, "[t]he parent must show that

counsel's performance was outside the wide range of professionally competent assistance

and that counsel's deficient performance prejudiced the parent." (Emphasis omitted.) In re

L.J., 12th Dist. Warren No. CA2014-10-124, 2015-Ohio-1567, ¶ 33. "Failure to establish

either element is fatal to the claim." In re D.S., 4th Dist. Pike No. 20CA905, 2020-Ohio-

4794, ¶ 23.

{¶ 45} Mother initially argues she received ineffective assistance of counsel because

her counsel did not advocate against the juvenile court adjudicating R.D. and S.D.

neglected children and instead moved the juvenile court for a finding that R.D. and S.D.

were dependent children. However, as this court stated previously, "challenges involving a

parent's stipulation to a finding of neglect, dependency or abuse cannot be raised at an

appeal from a later permanent custody determination." In re W.F., 12th Dist. Brown No.

CA2014-01-002, 2014-Ohio-2892, ¶ 12. Such a challenge must instead be made from the

juvenile court's adjudicatory decision as that decision, "followed by an award of temporary

custody to a children's services agency," is a final appealable order. In re K.M., 12th Dist.

Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 16. The same is true as it relates to Mother's

argument that her counsel was ineffective for not filing objections to the magistrate's

decision adjudicating R.D. and S.D. neglected children. To hold otherwise would result in

this court issuing an opinion that is, at best, advisory in nature. We decline Mother's

invitation provide such an opinion given that "[i]t is, of course, well settled that this court will

not indulge in advisory opinions." City of N. Canton v. Hutchinson, 75 Ohio St.3d 112, 114

(1996).

{¶ 46} In so holding, we note another well settled principle that "an appeal of an

adjudication order of abuse, dependency, or neglect of a child and the award of temporary

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custody to a children services agency pursuant to R.C. 2151.353(A)(2) must be filed within

30 days of the judgment entry pursuant to App.R. 4(A)." In re H.F., 120 Ohio St.3d 499,

2008-Ohio-6810, ¶ 18. "App.R. 4 governs the timing of appeals and must be carefully

followed because failure to file a timely notice of appeal under App.R 4(A) is a jurisdictional

defect." Id., citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58,

60 (1988). Therefore, because Mother did not file an appeal from the juvenile court's

adjudicatory decision and temporary custody order granting temporary custody of R.D. and

S.D. to CCDJFS, Mother is now barred from arguing that her counsel provided her with

ineffective assistance of counsel based on counsel's performance at any time prior to when

the juvenile court issued its adjudication decision and dispositional order. See, e.g., In re

W.F. at ¶ 10-13 (appellant's argument alleging "her counsel was ineffective for advising her

to stipulate to W.F.'s dependency" was barred on appeal where appellant did not appeal

from the juvenile court's dependency adjudication and temporary custody order).

Accordingly, Mother's initial ineffective assistance of counsel claims lack merit.

{¶ 47} Mother also argues she received ineffective assistance of counsel because

her counsel did not move to dismiss CCDJFS' motions for permanent custody since she

was not properly served with copies of CCDJFS' motions. However, as discussed more

fully above, the record indicates that Mother was properly served with a copy of CCDJFS'

motion for permanent custody prior to the day the permanent custody was hearing was

held. And, even if we were to assume Mother was correct in her assertion that she was not

properly served, Mother waived any challenge to the juvenile court's personal jurisdiction

over her due to any alleged violation of the notice requirement found in R.C. 2151.414(A)(1)

by appearing at, and fully participating in, the permanent custody hearing. Therefore,

Mother's additional ineffective assistance of counsel claim also lacks merit. Accordingly,

finding no merit to any of Mother's arguments raised within her fourth assignment of error,

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Mother's fourth assignment of error lacks merit and is overruled.

Conclusion

{¶ 48} In light of the foregoing, and finding no merit to any of the arguments Mother

raised within her four assignments of error, the juvenile court's decision granting CCDJFS

permanent custody of two of Mother's children, R.D. and S.D., is affirmed.

{¶ 49} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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