In re S.S., H.S., A.S. , 2018 Ohio 2279 ( 2018 )

[Cite as In re S.S., H.S., A.S., 2018-Ohio-2279.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: S.S. C.A. No. 28921
H.S.
A.S.
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 15-07-494
DN 15-05-282
DN 15-05-281
DECISION AND JOURNAL ENTRY
Dated: June 13, 2018
CALLAHAN, Judge.
{¶1} Appellant, A.Z. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to three of her
minor children and placed them in the permanent custody of Summit County Children Services
Board (“CSB”). This Court affirms.
I.
{¶2} Mother is the biological mother of eleven children, but only her three youngest
children are at issue in this appeal. The children’s father (“Father”) did not appeal from the trial
court’s judgment.
{¶3} Mother gave birth to her oldest two children while she was a teenager and, for
reasons not clear from the record, those children were placed in the legal custody of the maternal
grandmother many years ago. During September 2014, CSB opened an involuntary case with
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the six children then in Mother’s custody because of the deplorable condition of Mother’s home,
her history with children services agencies in other counties, her inability to meet the children’s
basic needs, and because she was living with and exposing her children to Father and another
man, both of whom had been convicted of felony sex offenses. Although Father was not the
father of any of those children, he was included on the case plan because he resided in the home
with Mother. During that case, Mother continued to reside with Father and failed to work on the
reunification requirements of the case plan.
{¶4} On April 1, 2015, Mother gave birth to S.S., H.S., and A.S. at 32 weeks gestation.
All three children required tube feeding and were transferred to the neonatal intensive care unit
at Akron Children’s Hospital. Because Mother was not visiting the triplets regularly and had
pending dependency and neglect cases with CSB pertaining to the six older children, S.S., H.S.,
and A.S. were removed from her custody before they were released from the hospital.
{¶5} Because A.S. was the smallest child and required more extensive medical care,
she remained in the hospital two months longer than S.S. and H.S. CSB filed complaints to
remove each child from Mother’s custody during May and July 2015, when they were scheduled
to be released from the hospital. All three children were later adjudicated dependent, placed in
the temporary custody of CSB, and have resided together in the same foster home throughout
this case.
{¶6} The case plan in this case required, among other things, that Mother engage in
parenting classes and mental health counseling to address her multiple mental health diagnoses
and demonstrate an ability to meet her children’s basic and special needs. After their release
from the hospital, the children continued to require specialized medical care and therapy
throughout this case. A.S. has had difficulty swallowing and required specialized feeding, the
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children have other medical problems, and all three have developmental delays. Although
Mother was encouraged to attend their medical and therapy appointments, she did not
consistently do so. During the first year of this case, Mother also failed to consistently engage in
counseling, obtain stable housing, or work on other reunification requirements of the case plan.
{¶7} During March 2017, while this case was still pending, the juvenile cases involving
six of Mother’s older children led to the termination of her parental rights to five of them. The
sixth child was placed in the legal custody of the maternal grandmother, who already had
custody of Mother’s two oldest children.
{¶8} CSB had already moved for permanent custody of S.S., H.S., and A.S., but, after
the trial court involuntarily terminated Mother’s parental rights to the five older siblings, CSB
amended the motion to add that ground. See R.C. 2151.414(E)(11) and (D)(1)(e). A
dispositional hearing was held before a visiting judge on the motions for permanent custody and
the parents’ alternative requests for legal custody of the children.
{¶9} At the hearing, the parties agreed that, at the time CSB filed its first motion for
permanent custody during November 2016, S.S., H.S., and A.S. had been in the temporary
custody of CSB for at least 12 months of a consecutive 22-month period. See R.C.
2151.414(B)(1)(d). The only contested issue at the hearing was whether it was in the best
interest of the children to be placed in the legal custody of one or both parents or in the
permanent custody of CSB.
{¶10} After the hearing, but before the trial court issued a dispositional decision, this
Court affirmed the termination of Mother’s parental rights to five of her older children. In re
T.Z., 9th Dist. Summit No. 28595, 2017-Ohio-7592. Shortly afterward, the trial court issued its
judgment in this case, terminating parental rights and granting permanent custody of S.S., H.S.,
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and A.S. to CSB. Mother appeals and raises five assignments of error, some of which will be
consolidated for ease of review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR OVER THE
PARENT[S’] OBJECTIONS IN ADMITTING EXHIBITS RELATED TO A
PRIOR PERMANENT CUSTODY CASE INVOLVING MOTHER, BUT NOT
FATHER OR THE MINOR CHILDREN.
{¶11} Mother’s first assignment of error is that the trial court erred in admitting journal
entries and other portions of the case files from the dependency and neglect cases of her older
children. She argues that the records were inadmissible because those cases did not involve
these children or Father and, therefore, were not relevant to this case. To begin with, although
Father was not a party to those cases because he was not the parent of any of the children, his
behavior had partially formed the basis of the complaints and adjudications, and he was included
on the case plan as a household member.
{¶12} Moreover, CSB had based its complaint in this case, in part, on the prior cases
involving the siblings. The fact that Mother had been involved in prior dependency and neglect
cases with older siblings of these children, leading to the involuntary termination of her parental
rights, was directly relevant to CSB’s motion for permanent custody in this case. See R.C.
2151.414(E)(11); R.C. 2151.414(D)(1)(e); In re N.M., 9th Dist. Summit No. 28118, 2016-Ohio-
5212, ¶ 23; In re P.T., 9th Dist. Summit No. 24207, 2008-Ohio-4690, ¶ 16.
{¶13} Mother also asserts that the contents of the prior dependency and neglect files
were inadmissible because they include hearsay. These documents were not inadmissible
hearsay, however, because “certified court documents are self-authenticating under Evid.R.
902(4) and are admissible under the public records exception to the hearsay rule[.]” In re I.T.,
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9th Dist. Summit Nos. 27513, 27560, 27581, 2016-Ohio-555, ¶ 12, citing Evid.R. 803(8), In re
R.P., 9th Dist. Summit No. 26836, 2013-Ohio-5728, ¶ 11, and In re E.A., 9th Dist. Medina No.
12CA0059-M, 2012-Ohio-5925, ¶ 12. See also R.C. 2317.42. Because Mother has failed to
demonstrate any error in the admission and consideration of the contents of the dependency case
files of her older children, her first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S ACTION IN TAKING JUDICIAL NOTICE OF THE
DECISION AND JOURNAL ENTRY OF THE NINTH DISTRICT COURT OF
APPEALS TIME-STAMPED SEPTEMBER 13, 2017, IN CASE NO. 28595
AFTER THE CONCLUSION OF THE PERMANENT CUSTODY TRIAL IN
THE INSTANT CASE, WAS CONTRARY TO LAW AND/OR
CONSTITUTED AN ABUSE OF DISCRETION; AND PREJUDICED
APPELLANT-MOTHER’S CONSTITUTIONAL RIGHT TO HAVE A FAIR
AND IMPARTIAL TRIAL.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED PLAIN ERROR BY TAKING JUDICIAL
NOTICE OF THE NINTH DISTRICT COURT OF APPEALS DECISION AND
JOURNAL ENTRY TIME-STAMPED SEPTEMBER 13, 2017, IN CASE NO.
28595 AFTER THE CONCLUSION OF THE PERMANENT CUSTODY
TRIAL IN THIS CASE.
{¶14} Mother argues through her second and third assignments of error that the trial
court erred by considering that this Court affirmed the involuntary termination of Mother’s
parental rights to the older siblings of these children in In re T.Z., 2017-Ohio-7592. Among
other reasons, Mother asserts that the trial court erred in considering this Court’s September
2017 decision because it was not issued until one month after the permanent custody hearing
concluded. See R.C. 2151.414(B)(1).
{¶15} “To demonstrate reversible error, however, [Mother] must demonstrate not only
that the trial court committed error but also that [she] suffered prejudice as a result.” In re S.A.-
C., 9th Dist. Summit No. 28704, 2017-Ohio-9297, ¶ 12. Even if the trial court erred by
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considering this Court’s decision in In re T.Z. because it was not issued and filed in those
children’s cases until after the permanent custody hearing, Mother has failed to demonstrate any
resulting prejudice.
{¶16} Notably, there was no need for the trial court to wait until this Court affirmed the
prior permanent custody judgment to consider it under R.C. 2151.414(E)(11) or R.C.
2151.414(D)(1)(e). The trial court’s consolidated judgment that terminated Mother’s parental
rights to her five older children was filed on March 27, 2017, before CSB amended its motion for
permanent custody. Although Mother argued at the subsequent hearing and again on appeal that
the March 2017 permanent custody decision was stayed pending appeal, there is nothing in the
record before us to indicate that a stay was issued during the pendency of that appeal.
{¶17} Moreover, even if the trial court stayed the permanent custody judgment, Civ.R.
62 only authorizes a stay of “the execution” of the judgment or proceedings “to enforce the
judgment” during the pendency of an appeal. See Civ.R. 62(A)-(C); State ex rel. Geauga Cty.
Bd. of Commrs. v. Milligan, 100 Ohio St.3d 366, 2003-Ohio-6608, ¶ 14. An order to stay the
execution of a judgment has no effect on a judgment’s finality or enforceability, but simply
prevents the actual enforcement or execution. See Gieg v. Gieg, 16 Ohio App.3d 51, 53 (11th
Dist.1984). In other words, a stay would prevent execution of the permanent custody judgment
by placing the children for adoption, but a stay would not invalidate or undo the judgment.
Instead, the purpose of a stay is to avoid the merits of the appeal becoming moot because the
judgment has been executed or satisfied. See, e.g., Filip v. Wakefield Run Master Homeowners’
Assn., 9th Dist. Medina No. 17CA0025-M, 2018-Ohio-1171, ¶ 9-10.
{¶18} The trial court may have been concerned that the March 2017 termination of
Mother’s parental rights could have been reversed on appeal, which would have invalidated that
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ground for permanent custody in this case. Although the trial court would run the risk that its
judgment might later be reversed for that reason, it was not precluded from relying on the March
2017 termination of Mother’s parental rights before that decision was affirmed on appeal. See,
e.g., R.C. 2151.414(E)(11); In re J.P., 9th Dist. Lorain No. 15CA01082, 2016-Ohio-337, ¶ 6.
{¶19} Because the trial court admitted certified copies of the older siblings’ juvenile
court case files, evidence of the March 2017 termination of Mother’s parental rights to each of
those children was before the trial court at the hearing. With that evidence, the trial court could
properly consider the prior terminations under R.C. 2151.414(E)(11) and 2151.414(D)(5).
Therefore, Mother has failed to demonstrate that she suffered any prejudice by the trial court also
considering that this Court later affirmed those permanent custody judgments on appeal.
Mother’s second and third assignments of error are overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT’S DECISIONS DENYING MOTHER’S MOTION FOR
LEGAL CUSTODY AND GRANTING [CSB’S] MOTION FOR PERMANENT
CUSTODY, THEREBY TERMINATING MOTHER’S PARENTAL RIGHTS,
WERE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE,
WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE; AND/OR
CONSTITUTED AN ABUSE OF DISCRETION.
ASSIGNMENT OF ERROR V
THE TRIAL COURT’S DECISIONS DENYING MOTHER’S ALTERNATIVE
MOTION FOR LEGAL CUSTODY TO FATHER AND GRANTING [CSB’S]
MOTION FOR PERMANENT CUSTODY, THEREBY TERMINATING
MOTHER’S RESIDUAL PARENTAL RIGHTS, WERE NOT SUPPORTED BY
CLEAR AND CONVINCING EVIDENCE; WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE; AND/OR CONSTITUTED AN ABUSE OF
DISCRETION.
{¶20} Mother argues that the trial court erred by placing the triplets in the permanent
custody of CSB rather than placing them in the legal custody of one or both parents. Before a
juvenile court may terminate parental rights and award permanent custody of children to a proper
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moving agency it must find clear and convincing evidence of both prongs of the permanent
custody test: (1) that the children are abandoned; orphaned; have been in the temporary custody
of the agency for at least 12 months of a consecutive 22-month period; the children or another
child in a parent’s custody has been adjudicated abused, neglected, or dependent on three
separate occasions; or the children cannot be placed with either parent within a reasonable time
or should not 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). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re
William S., 75 Ohio St.3d 95, 99 (1996).
{¶21} The trial court found that CSB had satisfied the first prong of the permanent
custody test for alternative reasons, including that the children had been in the temporary custody
of CSB for at least 12 months of a 22-month period. Mother does not dispute that finding but
confines her challenge to the trial court’s conclusion that permanent custody was in the best
interest of the children.
{¶22} Because the trial court’s decision whether to place the children in the legal
custody of one or both parents was also based on the best interest of the children, “this Court
typically conducts a single ‘best interest’ review of the trial court’s decision to place the
child[ren] in the permanent custody of the agency rather than in the legal custody to a relative.”
In re I.A., 9th Dist. Summit No. 26642, 2013-Ohio-360, ¶ 10, quoting In re T-G.M., 9th Dist.
Summit No. 25858, 2011-Ohio-3940, ¶ 13.
{¶23} If permanent custody was in the children’s best interest, legal custody to Mother
and/or Father necessarily was not. “‘Consequently, this Court will review the factors set forth in
R.C. 2151.414(D) in reviewing the [best interest] decision of the trial court * * *.’” Id. When
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determining the children’s best interest under R.C. 2151.414(D), the juvenile court must consider
all relevant factors, including the interaction and interrelationships of the children, their wishes,
the custodial history of the children, the need for permanence in their lives, and whether any of
the factors set forth in R.C. 2151.414(E)(7) to (11) apply to the facts of the case. See In re R.G.,
9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.
{¶24} The parents’ interaction with the children was limited to scheduled visits that
were supervised or monitored because they had not complied with the case plan. Father visited
the children only sporadically and had refused to work on the reunification goals of the case
plan. Mother visited the children regularly but she was not involved in their day-to-day care and
did not familiarize herself with the special needs of each child by attending medical or therapy
appointments. Although Mother testified that she received information about the children from
the foster mother, the evidence was not disputed that Mother had not been involved in any
education or hands-on care to address the children’s special medical or developmental needs.
{¶25} A.S. continued to work with a speech therapist and a dietician for a speech delay
and because she had difficulty swallowing. She continued to require tube feeding twice a day
and was slowly being introduced to solid foods and thickened liquids. Mother had not been
involved in tube feeding A.S. since she was released from the hospital. Mother had not attended
any of A.S.’s appointments during the past year, nor had she participated in feeding A.S. during
this transition. Mother seemed to have no understanding of the child’s feeding issues and merely
described her as a “picky” eater. Mother also demonstrated no understanding of any of the
children’s developmental delays, but instead described them as typical toddlers.
{¶26} While living in the same foster home, however, all three children were doing well.
The foster parents were ensuring that they received the regular medical care and therapy that
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they needed. The children were closely bonded to the foster parents and their foster siblings and
the foster parents were interested in adopting all three.
{¶27} Because these children were only two years old at the time of the hearing, the
guardian ad litem spoke on their behalf. She opined that permanent custody was in their best
interest because the parents had not complied with the case plan and were not prepared to meet
the children’s needs. She expressed concern that Mother had not been attending the children’s
medical appointments and observed that Mother did not actively engage with the children during
visits.
{¶28} S.S., H.S., and A.S. had never lived in the custody of Mother or Father. They had
spent more than two years living together in the same foster home and were in need of a legally
secure permanent placement. Although Mother argues that the trial court should have placed the
children in the legal custody of one or both parents, there was no evidence before the trial court
that either parent had the ability to meet the children’s basic and special needs.
{¶29} The trial court was also required to consider that Mother’s parental rights to five
older siblings were involuntarily terminated during March 2017, before CSB filed its amended
motion for permanent custody of the triplets. R.C. 2151.414(D)(1)(e); R.C. 2151.414(E)(11).
As noted already, although that judgment had not yet been affirmed on appeal, the trial court
properly admitted evidence about the prior permanent custody trial court judgments. Although
R.C. 2151.414(E)(11) provided Mother with an opportunity to present “clear and convincing
evidence to prove that, notwithstanding the prior termination, [she] can provide a legally secure
permanent placement and adequate care for the health, welfare, and safety of the child[ren,]”
Mother failed to present such evidence. See In re G.L.S., 9th Dist. Summit Nos. 28874, 28893,
2018-Ohio-1606, ¶ 19. She had made some case plan progress, such as acquiring housing and
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participating in some counseling, but she did not demonstrate that she was prepared to provide
three special needs children with a safe and stable home.
{¶30} Neither parent was prepared to provide the children with a stable home and CSB
had been unable to find a suitable relative who was willing to do so. The trial court reasonably
concluded that it was in the best interest of these children to be placed in the permanent custody
of CSB. Mother’s fourth and fifth assignments of error are overruled.
III.
{¶31} Mother’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.
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.
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Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.