In re X.H. , 2022 Ohio 779 ( 2022 )

[Cite as In re X.H., 2022-Ohio-779.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: X.H. C.A. Nos. 30115
M.H. 30116
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 19-10-865
DN 19-10-866
DECISION AND JOURNAL ENTRY
Dated: March 16, 2022
CARR, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated her parental rights to two of her children and placed them
in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”).
This Court affirms.
I.
{¶2} Mother is the biological mother of X.H. (d.o.b. 4/7/11) and M.H. (d.o.b. 2/28/12).
Father is the presumed legal father of the children because he and Mother were married at the time
the children were born. Mother has three other children who were also involved with CSB at the
same time as X.H. and M.H. were, but those children are not subjects of this appeal.
{¶3} Although Mother was the legal custodian of the five children, she had left them in
the care and physical possession of their maternal grandparents for approximately four years. An
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adult maternal uncle also lived in that home. After investigating a referral regarding concerns for
the children’s well-being, CSB removed the five children from the grandparents’ home. All three
adults in the home had limited mobility and significant health issues, leaving the oldest child, a
then-11-year-old, to care for his four younger siblings. The home reeked of human waste, was
infested with bed bugs, had no beds for the children who slept on the floor, had no working
refrigerator, and had a stove that must be unplugged when not in use due to a safety issue.
{¶4} CSB filed complaints, alleging all five children to be abused, neglected, and
dependent. The agency withdrew its allegations of abuse and neglect as to X.H. and M.H.1 Mother
stipulated that X.H. and M.H. were dependent, and the agency presented additional evidence in
Father’s absence. The juvenile court adjudicated the children dependent. After a dispositional
hearing, X.H. was placed in the temporary custody of a kinship caregiver, while M.H. was placed
in the temporary custody of CSB. The juvenile court adopted the agency’s case plan as the order
of the court.
{¶5} The goal of the case plan was reunification of the children with their parents.
Mother was required to obtain mental health and parenting assessments and follow all
recommendations, obtain and maintain independent housing that would be appropriate for five
children, and obtain and maintain fulltime employment to adequately meet the basic needs of the
children.
{¶6} CSB eventually filed motions for permanent custody of X.H., M.H., and their older
brother.2 Mother filed alternative motions for legal custody of all five children or six-month
extensions of temporary custody. After a final dispositional hearing regarding only the three oldest
1
The record does not contain all the information relevant to the three other siblings.
2
CSB did not include the two youngest siblings in its motion for permanent custody. The
dispositions of those two children are not in the record before this Court.
3
children, the juvenile court granted permanent custody of X.H. and M.H. to CSB, but granted a
six-month extension of temporary custody regarding the oldest child.3 Mother filed a timely appeal
and raises two assignments of error for review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
GRANTING PERMANENT CUSTODY OF THE CHILDREN TO CSB WHEN
FATHER WAS NOT AFFORDED AN OPPORTUNITY TO BE INVOLVED IN
THE CASE IN VIOLATION OF RIGHTS TO DUE PROCESS AND IN
FINDING THAT CSB ENGAGED IN REASONABLE REUNIFICATION
EFFORTS WITH THE PARENTS.
{¶7} Mother argues that, because CSB failed to properly serve Father with the summons
and the complaint, its use of reasonable efforts to facilitate reunification of the children with the
parents was illusory and ineffectual, thereby requiring reversal of the permanent custody judgment.
This Court declines to address the substance of Mother’s argument because she lacks standing to
raise these issues on Father’s behalf on appeal.
3
The original complaint regarding the oldest sibling had been dismissed based on the
agency’s inability to meet the statutory time limits for adjudication and initial disposition. CSB
refiled the complaint. Although the juvenile court found that “Mother had not completed her case
plan[,]” because of the additional time remaining in the oldest sibling’s case and that child’s
expressed desire to live with Mother, the court granted a six-month extension of temporary custody
“to afford Mother one last chance with this [oldest] child.”
4
{¶8} Mother cites In re Jones, 8th Dist. Cuyahoga No. 76533, 2000 WL 1739228 (Nov.
22, 2000), at *4, for the proposition that a parent has standing to challenge a permanent custody
judgment for lack of service on the other parent based on prejudice to the parents’ potential
retention of parental residual rights. In re Jones involved an agency complaint for permanent
custody. The juvenile court held both the adjudicatory and permanent custody hearings on the
same day. Id. at *1. The appellate court determined that the putative father had not received notice
regarding the permanent custody hearing. Id. at *2. Reasoning that the interests of parents are
aligned when the agency must prove that a child cannot or should not be returned to either parent,
the Eighth District concluded that “[w]here one parent is unable to defend against this challenge
[due to lack of notice of the proceedings], prejudice to the other parent is inherent.” Id. at *3.
This Court is not persuaded by our sister district’s conclusion.
{¶9} This Court has previously considered a parent’s appeal from an award of permanent
custody where the agency had not perfected service of the permanent custody motion upon the
other parent. In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024. In that case, despite
recognizing that unperfected service implicates a lack of personal jurisdiction which is waived
when not properly preserved by objection, we acknowledged that “[a] reviewing court has
discretion to ignore a waiver [of personal jurisdiction] in appropriate cases[.]” Id. at ¶ 13, 16.
Addressing the parent’s challenge to the lack of service upon the other parent, this Court held that
the appealing parent must “demonstrate that she was ‘actually prejudiced’ by the [lack of service
on the other parent] before she may assert [the alleged error] on her own behalf; otherwise she
lacks standing to raise the issue.” Id. at ¶ 18, quoting In re Jordan, 9th Dist. Summit Nos. 20773
and 20786, 2002 WL 121211 (Jan. 30, 2002). Moreover, an “argument [that] is entirely
speculative * * * does not demonstrate actual prejudice[.]” In re A.M. at ¶ 21.
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{¶10} In this case, Mother claims that lack of service on Father prejudiced her because he
would have been able to participate in the proceedings, challenge the agency’s allegations in the
complaint, and work on case plan objectives to attempt to reunify with the children. As in In re
A.M., we conclude that Mother’s argument is mere speculation and does not demonstrate that
Mother suffered actual prejudice. There is no indication that Father had any meaningful
relationship with X.H. and M.H. prior to their removal from the maternal grandparents’ home.
Moreover, it is difficult to understand how Father would have been successful in challenging
CSB’s allegations of dependency when Mother stipulated to those allegations as true. Under these
circumstances, we conclude that Mother lacks standing to challenge the juvenile court’s alleged
lack of personal jurisdiction over Father on his behalf. This Court declines to address the substance
of Mother’s first assignment of error.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
DENYING MOTHER’S MOTION FOR LEGAL CUSTODY OR IN THE
ALTERNATIVE MOTHER’S MOTION FOR SIX-MONTH EXTENSION AND
IN FINDING THAT IT WAS IN THE CHILDREN’S BEST INTEREST TO BE
PLACED IN THE PERMANENT CUSTODY OF CSB. THE TRIAL COURT’S
DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} Mother argues that the juvenile court’s judgment awarding permanent custody of
the children to CSB was against the manifest weight of the evidence. This Court disagrees.
{¶12} 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.)
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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.
{¶13} 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). The best interest factors include: the interaction and
interrelationships of the child, the wishes of the child, the custodial history of the child, the child’s
need for permanence and whether that can be achieved without a grant of permanent custody, and
whether any of the factors outlined in R.C. 2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-
(e); see In re R.G., 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. 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 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.
{¶14} As to the first prong, CSB alleged that X.H. and M.H. could not or should not be
returned to either parent pursuant to R.C. 2151.414(B)(1)(a). The juvenile court found that the
agency had met its burden of proof based on one of the two subsection (E) grounds alleged. That
subsection provides:
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In determining at a hearing [on a motion for permanent custody] 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 [permanent custody]
hearing * * * 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.
Although the agency might allege alternative first-prong grounds in support of its motion for
permanent custody, it need only prove one. In re T.B., 9th Dist. Summit Nos. 29560 and 29564,
2020-Ohio-4040, ¶ 11.
{¶15} This Court concludes that CSB proved by clear and convincing evidence that
Mother failed continuously and repeatedly to substantially remedy the conditions that led to the
children’s removal. See R.C. 2151.414(E)(1). The agency removed the children and their siblings
from their maternal grandparents’ home, where Mother had left the children for approximately
four years. Neither Mother nor Father had been the caregivers for the children during that extended
period of time. Accordingly, both parents were required to demonstrate that they were able to
provide safe and stable homes for the children. Father failed to participate in any reunification
efforts during the case.
{¶16} Almost a year after the case plan was adopted, Mother submitted to a mental health
assessment and was diagnosed with cyclothymic disorder, characterized by rapid mood swings
ranging from depression to mania. She was also referred for an intensive in-home parenting
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program. Mother engaged sporadically in mental health therapy. She refused to allow her assigned
parenting education behavioral health specialist into her home. The specialist, therefore, was only
able to work with Mother immediately prior to visits at the visitation center. Mother did not
consistently participate in those sessions either. While Mother could recite the textbook answers
when questioned regarding appropriate parenting behaviors, the behavioral specialist testified the
Mother never demonstrated that she understood how to apply those skills during interactions with
the children. Moreover, Mother failed to implement any suggestions by her parenting coach,
instead ignoring them or becoming angry.
{¶17} During visits, Mother focused on X.H. and her older brother, doting on them.
Although X.H. was only ten years old at the time, Mother engaged the child in adult conversations
regarding Mother’s relationship with her paramour and her alcohol use. Mother effectively
ignored M.H. and the two youngest siblings during visits. For example, when ordering food for
the five children, Mother only sought input from X.H. and the oldest child regarding their
preferences. On some occasions, Mother failed to say goodbye to M.H. at the end of visits. The
behavioral specialist, CSB caseworker, and guardian ad litem all testified that there was no
discernible bond between Mother and M.H.
{¶18} Mother obtained employment during the case and earned enough money to support
the three oldest children4 if she budgeted carefully. She refused to apply for housing with the local
housing authority because she had no means of transportation and insisted on limiting herself to a
very narrow area so she could walk to work. Mother at all times during the case lived in her
paramour’s one bedroom apartment. While the size of the apartment was inadequate for the
4
There were vague references in the record that the agency may have been trying to place
the youngest two children in the legal custody of paternal relatives.
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children, the caseworker was unable to assess other issues with Mother’s housing because Mother
refused to give the caseworker access to her home.
{¶19} Based on this Court’s review, CSB established by clear and convincing evidence
that Mother and Father had failed to remedy the concerns that led to the children’s removal from
their home. Father remained uninvolved with the children. Mother failed to demonstrate
appropriate parenting skills. She confided in the ten-year-old X.H. as an adult, discussing adult
topics beyond the child’s emotional maturity. She failed to nurture or engage with M.H. in any
meaningful way. Mother failed to secure housing that would accommodate the children.
Accordingly, the juvenile court’s first-prong finding that X.H. and M.H. could not or should not
be returned to the parents’ care was not against the manifest weight of the evidence.
{¶20} The agency further demonstrated that permanent custody was in the best interest of
the children. Despite being in Mother’s legal custody, the children spent the four years prior to
their removal in the care and physical custody of their grandparents and uncle, while Mother lived
elsewhere with her paramour. After the children were removed, Mother visited them fairly
consistently. She focused her time and interest on X.H. and the oldest sibling, engaging only
superficially with M.H. and the two youngest siblings. Mother and X.H. shared a bond but not as
mother and child. Rather, Mother treated X.H. as a peer even though the child’s maturity level
was that of a typical ten-year-old. There was no evidence of a bond between Mother and M.H.
who frequently expressed anger and frustration due to Mother’s lack of engagement with her.
{¶21} X.H. and M.H. are close in age and share a sisterly bond although they were placed
in separate foster homes. Both girls are engaged in counseling. X.H. was diagnosed with major
depression. Her mood has stabilized. M.H. was diagnosed with ADHD which is managed with
medication. She too has stabilized and was doing well in school. Mother showed no empathy or
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understanding regarding M.H.’s mental health issues. Instead, when Mother engaged at all with
M.H., it was typically to scold the child for her behavior.
{¶22} While X.H. expressed a desire to see Mother, she told the guardian ad litem that
she wanted to live with her current foster parents. M.H. did not want to live with Mother or return
to her grandparents’ home, but also wanted to remain in her current placement. The guardian ad
litem opined that it was in the children’s best interest to be placed in the permanent custody of
CSB, particularly in light of Mother’s resistance to addressing her parenting deficiencies, her lack
of adequate housing, the absence of a bond between Mother and M.H., and Mother’s age
inappropriate behavior with X.H.
{¶23} After four years of living apart from Mother who was their legal custodian, and 21
months outside of their grandparents’ home, the children require permanence. Mother failed to
demonstrate the ability to provide an appropriate home for the children. She had no appropriate
housing. While Mother could parrot appropriate parenting techniques, she failed to apply healthy
parenting skills in her interactions with the children.
{¶24} CSB had rejected the grandparents’ home as a viable placement option due to
ongoing issues there. The uncle in the home had died, the grandmother had had a stroke and was
residing in a nursing home, and the grandfather supported the children’s removal from his home.
Although the children’s respective foster families were not willing to adopt the children, both
households agreed to provide homes for the children for as long as necessary until a permanent
placement could be found.
{¶25} Based on a thorough review of the record, this is not the exceptional case in which
the trier of fact clearly lost its way and committed a manifest miscarriage of justice by terminating
the parents’ parental rights and awarding permanent custody of X.H. and M.H. to CSB. Neither
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parent addressed the parenting deficiencies identified by the agency. Mother failed to develop the
insight or skills to allow her to provide for the children’s physical, emotional, and developmental
needs. Under the circumstances, CSB established by clear and convincing evidence that an award
of permanent custody was in the best interest of the children. Accordingly, the juvenile court’s
judgment terminating Mother’s and Father’s parental rights and placing X.H. and M.H. in the
permanent custody of the agency was not against the manifest weight of the evidence.
{¶26} This Court rejects Mother’s argument that the juvenile court erred by denying her
alternative motions for legal custody or a second six-month extension of temporary custody. We
have consistently held that, when an award of permanent custody is in the best interest of the
children, then legal custody to any person or an extension of temporary custody necessarily are
not. See, e.g., In re D.T., 9th Dist. Summit No. 29876, 2021-Ohio-1650, ¶ 15 (regarding legal
custody), and In re L.T., 9th Dist. Summit No. 29972, 2022-Ohio-114, ¶ 33 (regarding an extension
of temporary custody). Moreover, to justify a second six-month extension of temporary custody,
there must be clear and convincing evidence that the additional extension is in the best interest of
the children, that the parent has made substantial additional progress toward reunification since
the first extension, and that there is reasonable cause to believe that reunification will occur within
the extension period. R.C. 2151.415(D)(2). In addition to a lack of evidence indicating that an
additional extension was in the best interest of these children, Mother had not made substantial
progress on her case plan objectives, and there was no reasonable cause to believe that either child
could be reunified with her within the remaining three months of the case allowed by statute. See
R.C. 2151.415(D)(2). Mother’s second assignment of error is overruled.
III.
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{¶27} Mother’s second assignment of error is overruled. Mother lacks standing to
challenge the issue raised in her first assignment of error, and this Court, therefore, declines to
address it. 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.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
NOWAR KATIRJI, Attorney at Law, for Appellee.
BRENDON KOHRS, Attorney at Law, for Appellee.
MYRA COTTRILL, Guardian ad Litem.