[Cite as In re R.M., 2025-Ohio-1421.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: : R.M. (D.O.B. 01-25-2022) : Hon. Andrew J. King, P.J. : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. : : Case No. 2024 AP 12 0038 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Common Pleas Court, Juvenile Court Division, Case No. 23 JN 00176
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 18, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LISA VITALE ARNOLD RICHARD D. HIXSON Tuscarawas County Job & Family Services 3808 James Court, Suite 2 389 16th St., SW Zanesville, OH 43701 New Philadelphia, OH 44663
Attorney Donovan Hill Monica DeRamus Guardian ad Litem Guardian ad Litem for Appellant, K.M. 122 Market Ave. North, Suite 101 116 Cleveland Ave., NW, Suite 705 Canton, Ohio 44702 Canton, OH 44702 Montgomery, J.
STATEMENT OF THE FACTS AND THE CASE
{¶1} K.M., the mother of the minor child (“Appellant”), is appealing the decision
of the Tuscarawas County Court of Common Pleas, Juvenile Division, awarding
Tuscarawas County Department of Job and Family Services (“Appellee”) permanent
custody of R.M. (“the minor”).
{¶2} The minor was born on January 25, 2022, to Appellant and R.P. (“Father”).
The minor is diagnosed with Chung Jansen Syndrome which is a rare genetic condition.
Complications from the syndrome include growth and developmental delay, intellectual
and learning disability, failure to thrive, near sightedness, seizures, constipation and
obesity.
{¶3} At the time of the minor’s removal from Appellant’s home, Appellant was
living with her boyfriend and the minor’s grandmother (“Grandmother”) and
Grandmother’s husband. The home they lived in was in deplorable condition. Appellant
and her boyfriend were using methamphetamines and amphetamines in the home. The
minor was suffering from severe failure to thrive.
{¶4} Appellee received emergency custody after a shelter care hearing and filed
a Complaint alleging dependency and neglect on June 20, 2023. The minor was found to
be dependent and neglected and Appellee was granted temporary custody on August 25,
2023. Several review hearings were held, and the minor remained in the temporary
custody of Appellee. Appellant filed her Motion for Change of Legal Custody on May 10,
2024 and Appellee filed its Motion to Modify Prior Disposition to Permanent Custody on May 15, 2024. The trial court heard both motions and filed its Judgment Entry on
November 19, 2024.
{¶5} A Family Case Plan was filed with the trial court on July 11, 2023. Concerns
listed on the case plan include child’s severe failure to thrive, poor home conditions, dirty
home, animal neglect, drug and mental health concerns and Appellant’s intellectual
delays. Judgment Entry, p.4. The case plan states that Appellant “be able to demonstrate
that she can care for her child’s special medical needs”. That “she learns, understand and
articulates normal child behaviors expected from child and non-harmful discipline
techniques”. And that she “apply this knowledge and understanding to her care of child
on a consistent basis”. Family Case Plan, p.1. The case plan also ordered Appellant to
complete a psychological exam with Dr. Aimee Thomas. Id.
{¶6} Dr. Aimee Thomas, an expert in the field of psychology, completed an
evaluation of Appellant and found that Appellant has a full-scale IQ of 40. Trial Transcript,
p.93. Dr. Thomas testified that Appellant is “functioning at a level of a five and six-year-
old in terms of verbal capacity and, as well as non-verbal skills”. Id. Dr. Thomas opined
that, “Individuals functioning within this level require a lot of support towards raising
children and a lot of support in order to be safe in the community and to live independent.
They would require assistance and may not be able to live completely independently.” Id.
Dr. Thomas attempted to administer several other tests in which Appellant could not
complete because of her intellect. Id.
{¶7} Dr. Thomas also evaluated Grandmother and found her to have a verbal IQ
of 63 and non-verbal IQ of 48. Trial Transcript, p.106. Dr. Thomas found that “this
indicates she’s functioning at the level of a nine-year-old in terms of verbal skills, and at the level of a four-year-old in terms of nonverbal skills.” Id. Dr. Thomas explained that
Grandmother is significantly delayed in her ability to “perceive problematic situations,
taking information from one situation and applying it to another situation”. Id.
{¶8} The Father of the minor was not involved in the Family Case Plan. The
Father of the minor was in and out of jail during the pendency of the case. The Father
was not placed on the case plan due to his desire not to complete services. Judgment
Entry, p.5. Father missed numerous appointments with the case worker. Id.
{¶9} Appellant participated in supervised visits with the minor. Appellant
attended visits regularly. During these visits, Appellant needed help from the visitation
aide with providing adequate care for the minor. Trial Transcript, p.168. Appellant brought
the wrong size diapers on several occasions that left marks on the minor. Appellant also
brought candy and other snacks for the minor that he cannot consume. On one occasion,
the minor was climbing on a wobbly chair and Appellant did not intervene until the
supervisor brought it to her attention. Id., p.168. Based on the observations of Appellant’s
supervised visits and the Report of Dr. Thomas, the Guardian Ad Litem opined it was not
possible for Appellant to independently parent the minor, absent placing the minor in
harm’s way. Id., p.260.
{¶10} Trudy Lewis, the Kinnect to Family specialist gave testimony detailing her
efforts to find family members who may want to take placement of the minor.
Approximately 20 family members responded but were unable to care for the minor due
to his health issues. Trial Transcript, p.147-148.
{¶11} The trial court denied Appellant’s Motion for Change of Legal Custody.
Judgment Entry, p.8. {¶12} The trial court also found that, “Based upon the facts presented and the
recommendation of the Guardian Ad Litem, the Court finds that the minor cannot and
should not be placed with either parent within a reasonable time. The evidence supports
a finding that despite diligent, reasonable efforts and planning by the Tuscarawas County
Department of Job and Family Services to remedy the problems which caused removal
of the child, said parents have failed continually and repeatedly to substantially remedy
the conditions causing removal.” Judgment Entry, p.7. The trial court ordered the minor
be placed in the permanent custody of Appellee pursuant to R.C. 2151.353(A)(4). Id., p.8.
{¶13} Appellant filed a timely appeal to the trial court’s decision and asserts the
following assignments of error:
{¶14} “I. TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
FOUND BY CLEAR AND CONVINCING EVIDENCE WHEN IT FOUND THAT THE
MINOR CHILD COULD NOT BE PLACED WITH EITHER PARENT WITHIN A
REASONABLE TIME OR SHOULD NOT BE SO PLACED.
{¶15} II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO
INQUIRE WHETHER THE CHILD WAS A MEMBER OF OR ELIGIBLE FOR
MEMBERSHIP IN A FEDERALLY RECOGNIZED INDIAN TRIBE, PURSUANT TO THE
INDIAN CHILD WELFARE ACT OF 1978.”
STANDARD OF REVIEW
{¶16} Clear and convincing evidence is that evidence "which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established".
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. See In re
Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record
to determine whether the trier of facts had sufficient evidence before it to satisfy the
requisite degree of proof." Cross, at 477.
ANALYSIS
{¶17} In her first assignment of error, Appellant claims the trial court erred and
abused its discretion when it found by clear and convincing evidence that the minor could
not be placed with either parent within a reasonable time or should not be so placed. We
disagree with this assignment of error.
{¶18} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial
court determines, by clear and convincing evidence, that it is in the best interest of the
child and:
(a) The child is not abandoned or orphaned . . . 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. . . .
(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.
{¶19} R.C. 2151.414(E) sets out the factors relevant to determining whether a
child cannot be placed with either parent within a reasonable period of time or should not
be placed with either parent. Said section states in pertinent part the following:
(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code;
(3) The parent has demonstrated a lack of commitment toward the child
by failing to regularly support, visit, or communicate with the child when able
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
***
(16) Any other factor the court considers relevant.
{¶20} During the hearing, the trial court heard testimony from Dr. Jirat
Chenbhanich (expert in genetics), Amy Burrier (employee with Ohio Guidestone), Kristina
Miller (foster parent of the minor), Trudy Lewis (Kinnect to Family Specialist), Skyler
Smolak (caseworker with Appellee), Aimee Thomas, Ph.D, (evaluator), Attorney Donavan
Hill (guardian ad litem), J.M. (mother of Appellant), and K.M. (Appellant) and R.P. (Father
of the minor). {¶21} Dr. Jirat Chenbhanich testified as to the special needs of the minor. Dr.
Chenbhanich stated that the minor, “needs a significant amount of care based on the
medical issues that he has. He has some heart differences, some kidney differences. His
growth and development, there are some concerns. Feeding issues. He is seeing more
than five specialists, so he needs significant amount of care by both the primary care
provider, who will be the centralized person, and also all of the specialists”. Trial
Transcript, p. 22.
{¶22} After assessing both Appellant and Appellant’s mother, Dr. Aimee Thomas
stated that “Even if R.M. didn’t have these special needs, I would be of the opinion, based
on their intellectual capacity and the history, that they would not be able to independently
raise this child.” Trial Transcript, p. 129.
{¶23} Appellee caseworker Skyler Smolak relayed to the court that “Appellant
required help from the visitation aide to provide adequate care during the visit.” Trial
Transcript, pp.167-168.
{¶24} The guardian ad litem testified as to his concerns regarding placement of
the minor with Appellant and Grandmother. Mr. Hill testified that he had observed
“concerning behaviors in visits with Appellant and the minor in that Appellant was not
aware of things that could pose a physical risk to the minor”. Trial Transcript, p. 248. He
informed the court that he had witnessed situations where the minor was placing himself
in a dangerous situation and Appellant did not intervene. Id.
{¶25} Appellant contests the trial court’s finding that the agency made diligent,
reasonable efforts in satisfaction of R.C. 2151.414(E)(1) and R.C. 2151.419. After
evaluating Appellant, Dr. Thomas recommended that Appellant participate in a parenting skills program. Trial Transcript, pp. 95-96. Dr. Thomas also stated in her Report that,
“Although Appellant may accrue some benefit from participating in treatment services,
12-step meetings and a parenting skill program, serious questions exist regarding her
ability to actually learn, internalize and retain information provided in such programming”.
Report, p. 9. Appellant argues that Appellee had an affirmative duty to follow the
recommendation of Dr. Thomas. Specifically, Appellant argues that since Appellee did
not refer her to their parenting program, Appellee did not afford Appellant the opportunity
to demonstrate that she could complete her case plan. However, Mr. Smolak, caseworker
for Appellee, determined that based on Dr. Thomas’ comments and the fact that Appellant
had already completed a parenting program, “she would not be able to comprehend what
was being taught in that class.” Trial Transcript, p. 163.
{¶26} Appellant argues that since Appellee did not recommend a second
parenting class for Appellant, Appellee failed to make “reasonable efforts” pursuant to
R.C. 2151.419. However, in reviewing this statute, this Court finds that it does not apply
to a permanent custody hearing pursuant to R.C. 2151.414. R.C. 2151.419 governs
hearings on efforts of agencies to prevent removal of children from homes. R.C. 2151.419
lists the types of hearings where the statute applies and R.C. 2151.414 is not included in
that list.
{¶27} In determining if reasonable efforts have been made by Appellee to reunify
the child with the Appellant, “The issue is not whether there was anything more the agency
could have done, but whether the agency’s case planning and efforts were reasonable
and diligent under the circumstances of the case.” In the Matter of M.G., 2023-Ohio-695,
at ¶ 69. There is nothing in the record to show that another parenting class would benefit Appellant’s ability to care for the minor. However, there is evidence in the record that after
Appellant completed a parenting class, Appellant was unable to progress beyond
supervised visitation. Appellee organized supervised visits between Appellant and the
minor. However, based on observations of these visits, Appellee continued to have
concerns with Appellant’s ability to care for the minor without intervention. Trial Transcript,
p. 5. Appellee made reasonable efforts under the circumstances, but Appellant was
unable to remedy the problems which caused removal of the minor.
{¶28} Based upon the cited testimony and evidence presented, this Court finds
that the trial court had sufficient evidence to find that the minor child could not and should
not be placed with either parent within a reasonable time.
{¶29} In her second assignment of error, Appellant claims the trial court committed
plain error in failing to follow the Indian Child Welfare Act of 1978. We disagree.
{¶30} The Indian Child Welfare Act (“ICWA”) was enacted "for the protection and
preservation of Indian tribes and their resources." 25 U.S.C.A. 1901(2). Congress was
concerned that "an alarmingly high percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them by nontribal public and private
agencies”. 25 U.S.C.A. 1901(4). Congress acknowledged, "there is no resource that is
more vital to the continued existence and integrity of Indian tribes than their children and
that the United States has a direct interest, as trustee, in protecting Indian children who
are members of or are eligible for membership in an Indian tribe". 25 U.S.C.A. 1901(3).
Therefore, state courts are required to "ask each participant in an emergency or voluntary
or involuntary child-custody proceeding whether the participant knows or has reason to
know that the child is an Indian child. The inquiry is made at the commencement of the proceeding, and all responses should be on the record". 25 C.F.R. 23.107(a). "A court's
failure to identify Indian children can nullify court proceedings that have not been
conducted in accordance with the Act." In re L.M., 2024-Ohio-5549 ¶ 13 (12th Dist.),
citing Adm.Code 5101:2-53-02.
{¶31} The permanent custody hearing transcript is devoid of any inquiry as to
whether the child was an Indian child. But the Act states the inquiry "is made at the
commencement of the proceeding". A dispositional hearing was held on August 25, 2023,
at which Appellant was present. The trial court filed a Judgment Entry on August 29, 2023,
that adopted the Family Case Plan filed with the court on July 11, 2023 and made it an
order of the court. Judgment Entry, p. 1. The Family Case Plan clearly states that the
minor child is not protected by ICWA. Id.
{¶32} The Act applies to an "Indian child" that means "any unmarried person who
is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe".
25 U.S.C.A. 1903(4). We note Appellant does not argue to this court that the minor is an
Indian child or eligible for membership in a tribe. There is no indication the minor is of
Indian heritage or meets the criteria of 25 U.S.C.A. 1903(4).
{¶33} As cited by Appellant in her appellate brief at 17, Ohio courts have nullified
determinations terminating parental rights and granting permanent custody to the agency
in cases where the Act has not been followed. In re L.M., 2024-Ohio-5549 (12th Dist.);
In re D.E., 2021-Ohio-524 (10th Dist.); In re R.G., 2016-Ohio-7897 (8th Dist.). But we
find these cases to be distinguishable. In L.M., there was no indication that mother was
put on notice of the potential for the Act to apply. Here, Appellant was put on notice via the Family Case Plan. In D.E., the trial court failed to make a proper inquiry after mother
claimed to have Native American heritage in her background. Here, there was no
indication of Indian heritage.
{¶34} Even assuming arguendo that the trial court failed to properly inquire, based
on the state of the record before us, we cannot say that but for this "plain error" the Act
would have been found to apply. Because Appellant did not raise this issue in the trial
court, she has forfeited all but plain error on appeal. In re S.M., 2025-Ohio-34, ¶ 15 (9th
Dist.). Civil plain error is "error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself". Goldfuss v. Davidson,
79 Ohio St.3d 116 (1997), syllabus. In applying the doctrine, reviewing courts "must
proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases
where exceptional circumstances require its application to prevent a manifest miscarriage
of justice, and where the error complained of, if left uncorrected, would have a material
adverse effect on the character of, and public confidence in, judicial proceedings". Id. at
121.
{¶35} We do not find any plain error that seriously affected the legitimacy of the
underlying proceedings or caused a manifest miscarriage of justice.
{¶36} Assignment of Error II is denied. CONCLUSION
{¶37} The Court hereby affirms the decision of the Tuscarawas County Court of
Common Pleas, Juvenile Division issued on November 19, 2024.
By: Montgomery, J.
King, P.J. and
Popham, J. concur.