In re M.G. , 2023 Ohio 1316 ( 2023 )

[Cite as In re M.G., 2023-Ohio-1316.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
IN RE: :
CASE NO. CA2022-11-010
M.G., et al. :
OPINION
: 4/24/2023
:
:
:
APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 2021-3034; 2021-3035; 2021-3036; 2021-3037
The Law Office of Karen Oakley, LLC, and Karen Oakley, for appellant.
Zac Corbin, Brown County Prosecuting Attorney, and Courtney A. Worley, Assistant
Prosecuting Attorney, for appellee.
S. POWELL, P.J.
{¶1} Appellant ("Father") appeals the decision of the Brown County Court of
Common Pleas, Juvenile Division, granting permanent custody of his four children, M.G.,
Brown CA2022-11-010
S.G., D.G., and A.G., to appellee, Brown County Department of Job and Family Services
("BCDJFS"). For the reasons outlined below, we affirm the juvenile court's decision.
The Parties
{¶2} This case involves the permanent custody of the four above-named children.
The children, one girl and three boys, were born on August 13, 2015, February 21, 2017,
June 29, 2019, and October 6, 2020, respectively. There is no dispute that Father, who
lives in South Carolina, is the biological father of all four children. There is also no dispute
that the children's mother ("Mother"), who is not a party to this appeal, consented to having
her parental rights to the children terminated by the juvenile court. This is in addition to
Mother giving her consent for the juvenile court to award permanent custody of the children
to BCDJFS.
Facts and Procedural History
{¶3} On April 22, 2021, a complaint was filed by BCDJFS alleging the children were
abused, neglected, and dependent.1 BCDJFS filed this complaint after having already
engaged Mother in a voluntary safety plan following A.G.'s birth approximately six months
earlier, on October 6, 2020. To support its abuse, neglect, and dependence complaint,
BCDJFS alleged, among other things, that Mother had tested positive for THC at the time
of A.G.'s birth and that Mother had admitted to smoking THC on a regular basis.2 BCDJFS
also alleged that both Mother and the children's maternal grandparents had disclosed that
Father had been "abusive and controlling" towards Mother during Mother and Father's on-
again-off-again relationship.
1. We note that although all four children were given different case numbers, for ease of discussion, and
because the filings are substantially similar in each of the four cases, we will refer to the record as if all four
children were filed under the same case number throughout this opinion.
2. The abbreviation THC is short for Tetrahydrocannabinol. Tetrahydrocannabinol is the active ingredient and
main psychoactive compound found in marijuana. State v. Graves, 5th Dist. Ashland No. 22 COA 001, 2022-
Ohio-4130, ¶ 5.
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{¶4} On April 23, 2021, the juvenile court held an emergency shelter care hearing.
Following this hearing, the juvenile court issued an interim order granting temporary custody
of the children to BCDJFS. The juvenile court also appointed Mother and Father with their
own, separate counsel and the children with a guardian ad litem. The record indicates that
Mother personally appeared at the emergency shelter care hearing, whereas Father
appeared at that hearing via telephone from his home in South Carolina.
{¶5} On May 12, 2021, the juvenile court held an adjudicatory hearing where it
adjudicated all four children as abused, neglected, and dependent. The juvenile court also
approved a case plan for Mother. This case plan required Mother to address her substance
abuse and mental health issues. The case plan also required Mother to complete parenting
classes. Father, who the record indicates did not challenge the juvenile court's decision to
adjudicate the children as abused, neglected, and dependent in any way, appeared at this
hearing with counsel. Mother's counsel also appeared at this hearing. Mother, however,
did not.
{¶6} On June 16, 2021, the juvenile court held a disposition hearing where it issued
a dispositional decision granting temporary custody of the children to BCDJFS. Both Mother
and Father, neither of whom the record indicates objected to the juvenile court's
dispositional decision, appeared at this hearing with their respective counsel.
{¶7} On January 5, 2022, the juvenile court approved a case plan for Father. This
case plan required Father to obtain a mental health assessment and to complete parenting
classes. The case plan also required Father to attend an anger management/domestic
violence education course. This was in addition to the case plan requiring Father to
physically appear in Ohio twice a month for supervised visitation time with the children. This
requirement, which the record indicates Father himself approved, was included in the case
plan so that Father could develop an otherwise non-existent bond between himself and the
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children.
{¶8} On July 22, 2022, BCDJFS filed a motion for permanent custody. To support
its permanent custody motion, BCDJFS alleged that Father had not maintained consistent
contact with the agency and that Father did not "inquire about his children's well-being" or
engage in the required services set forth in his case plan. BCDJFS also alleged that Father
had not engaged in the necessary anger management/domestic violence education course
and that Father was no longer attending the required parenting classes after he was
"discharged due to a lack of compliance and participation." BCDJFS further alleged that
although Father had received an approved home study from his home state of South
Carolina pursuant to the Interstate Compact on the Placement of Children ("ICPC"), Father
had nevertheless "failed to establish any sort of consistent relationship with the children"
given his limited contact with the children since their placement in BCDJFS' temporary
custody over a year earlier, on April 23, 2021.
{¶9} BCDJFS supported this allegation by noting that Father had only attended
three of the last 15 supervised visits he was to have with the children, the most recent taking
place over five months earlier, on February 15, 2022. BCDJFS also noted that during the
limited visitation time Father spent with the children, A.G. "cries excessively and is
inconsolable" and D.G. "plays independently." BCDJFS further noted that during Father's
visitation time S.G. "has requested to leave the visitation, pulling on the door, requesting
his Case Worker." This is in addition to BCDJFS noting that Father "has been observed to
be overwhelmed" when visiting with the children and that Father had "ended a visit
prematurely in 2021 because [A.G.] was inconsolable." BCDJFS alleged that this was in
stark contrast to how the children behaved in their respective foster homes where they were
"doing extremely well in the care of their foster families and receiving services that
contribute to their development."
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Hearing on BCDJFS' Motion for Permanent Custody
{¶10} On the morning of September 21, 2022, the juvenile court held a hearing on
BCDJFS' motion for permanent custody. Mother, Mother's counsel, Father's counsel, the
caseworker then assigned to the children's case, and the children's guardian ad litem all
appeared at this hearing. Father, however, did not. The following is a summary of the
relevant proceedings taking place at that permanent custody hearing. 3 This includes an
overview of the testimony offered by the two witnesses who testified at this hearing: the
children's caseworker and the children's guardian ad litem.4
{¶11} Upon opening the hearing, the juvenile court recognized that Father was not
present within the courtroom. The juvenile court then asked Father's counsel, Attorney
Vivian Martin, if she knew Father's whereabouts that morning. Attorney Martin responded,
"No, Your Honor." Attorney Martin then advised the juvenile court that it was her
understanding that Father had been properly served with notice of when and where the
hearing on BCDJFS' permanent custody motion was to take place. Attorney Martin also
advised the juvenile court that she and Father had been communicating back-and-forth via
email the preceding week, but that Father had not responded to her last email asking
whether he would be attending that morning's hearing. Attorney Martin further advised the
juvenile court that she had attempted to call Father earlier that morning, but that she was
unable to reach Father at either of his last two known telephone numbers.
{¶12} Following this exchange, Attorney Martin then advised the juvenile court that
because Father had "missed the last couple or so of court hearings," that she was moving
to withdraw as Father's counsel. After a brief discussion with BCDJFS' counsel, the juvenile
3. The transcript of the hearing on BCDJFS' motion for permanent custody spans a total of just 33 pages.
4. During oral argument, father claimed that only the children's caseworker testified. The record does not
support this claim. Both the children's caseworker and guardian ad litem testified at the hearing on BCDJFS'
permanent custody motion.
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court denied Attorney Martin's motion to withdraw. In so doing, the juvenile court stated:
Counsel, your client has left you in a position. I've been there
many times, a position where there – there's not a lot you can
do for him at this point if he doesn't feel the need to come to
court.
I am going to deny your motion though, just because it – the
nature of the evidence is going to be presented briefly this
morning is going to be about him, and I don't frankly want to give
a – an issue for appeal purposes that you were not present.
{¶13} The juvenile court also stated:
And I thank you for – I thank you for your motion. It was
appropriate. I just, for making that record clear that there have
been the attempts to get ahold of him. He's been served.
You've tried to get him. It will – it will allow us to go forward and
sometimes we're just doing it as a – we're – we're here for the –
for the information. But there's not a lot of things you can do
without him, but I appreciate you staying.
{¶14} Shortly after the juvenile court denied her motion to withdraw, Attorney Martin
then moved the juvenile court to continue the hearing on BCDJFS' motion for permanent
custody to a later date given Father's absence. The juvenile court denied this motion as
well stating:
I'm going to deny it just in the fact that I think you've made
diligent efforts to get in touch with him. We have proper service.
And we cannot continue to kick this can down the road given
[Father's] flightiness at a minimum and a lack of predictability of
whether he's going to be here or not.
The juvenile court did note, however, that it would have given more consideration to
Attorney Martin's motion to continue had Father appeared for all of the court's prior review
hearings, "[b]ut the failure to come to those when he was properly served puts us in a
position here where I think it's in the best interest of all, including the – most importantly the
children to go forward."
{¶15} Moving on, BCDJFS then called the children's caseworker to the stand to
testify. Upon taking the stand, the caseworker testified that despite having received an
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approved ICPC home study for Father's home in South Carolina, BCDJFS still had
significant concerns regarding Father's "bond with the children and their relationship with
one another." Explaining why that was, the caseworker testified that Father had limited
involvement with the children over the previous two years and that the last time Father had
seen the children in person was approximately seven months earlier, on February 15, 2022.
The caseworker also testified that although BCDJFS had offered Father nearly 20 different
opportunities to visit with the children, Father had only attended five of those visits, "and
two of those were virtual." The caseworker then testified:
[Father's] first contact with the agency would have been face-to-
face. It would have been June 16th of 2021. And that was his
first visit with the children since the agency's involvement. That
also would have been his first visit with [A.G.], which is the
youngest child. So, that child would have been 7 months old by
the time he had met that child initially.
{¶16} Continuing, the caseworker testified:
So then, visits were offered and tried to be set up with the
previous caseworker. Another visit was offered in August [of
2021]. He did not attend that. * * * The ICPC was completed
when I became the caseworker for the case in November. * * *
I had reached out to him and we set up a virtual visit in
December. And then he came to his first visit in January [of
2022] when we had a court hearing. Him and I met together.
He was added to the case plan per the ICPC being approved.
And then visitations were set up twice a month for the remainder
of – until now, and the virtual visits were also offered in between
until those weren't going well.
The caseworker did testify, however, that Father had seemingly established a bond with the
two oldest children, M.G. and S.G., while Mother and the children were living with Father in
South Carolina. The caseworker testified that such a bond existed even though S.G.
"doesn't necessarily always know" that Father is, in fact, his father.
{¶17} The caseworker was then asked about the three in-person supervised visits
Father had with the children. The caseworker testified that those three visits "were not
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successful." Explaining why that was, the caseworker testified that Father had ended the
first visit "partially early with [A.G.] because [A.G.] was crying excessively." The caseworker
then testified regarding the two other in-person visits Father had with the children as follows:
The other couple of visits that I supervised myself, because that
was prior to me being the caseworker, but the other in-person
visitations that I had supervised myself, [Father was] more
engaged. [Father] engaged more with the older two children.
[D.G.] was very disengaged, and [A.G.] would cry excessively.
One of those visits [A.G.] cried for the entirety of the – of the
visit, and then at another visit, [S.G.] kept asking to leave the
room and asking for his caseworker.
Thereafter, when asked what BCDJFS' position was at it related to Father's bond with the
children, the caseworker testified that BCDJFS does not believe there is a bond between
the children and Father.
{¶18} The caseworker was then asked about what services BCDJFS had offered to
Father as part of his case plan. The caseworker testified that one of the services offered to
Father was case management. The caseworker testified that this included diligently
keeping Father "in the loop" about when and where he could visit with the children. The
caseworker testified that she did this by emailing and/or telephoning Father prior to each
visit, "typically either the day before or the morning of, and within that email would also let
him know when the other scheduled visits were." The caseworker testified that Father
responded to her emails only occasionally to tell her "if he was coming or not" and that
sometimes "it would be a day or so later" before she would get any response from Father.
{¶19} The caseworker then testified regarding her last contact with Father as
follows:
I completed a zoom with him, because his phone number was
not working and I was getting one of those generated calls that
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this is no longer a working number.5 He emailed me back and
we set up a zoom visit. It was on September the 6th. * * * He
told me that he had separated from his fiancée who he was
living with, and he was no longer living in that home. He would
not provide an address to me, and would not provide me with
his new cell phone number.
The caseworker testified that Father had actually told her that it was "none of [her] business"
where he was living. The caseworker then testified that because Father refused to provide
her with his new address that BCDJFS had no way of knowing whether Father had stable
housing that would be suitable for the children at that time.
{¶20} The caseworker testified that BCDJFS had also offered parenting education
to Father, something which the caseworker testified Father did not complete. As the case
worker testified:
I made a – I actually contacted the South Carolina Children
Services equivalent, and they provided me with a facility that
they typically use for those type of services. So, I made a
referral to – it's called "A Father's Place" in February of 2022.
And so, he did begin those services but he did not complete and
he was discharged from the program on June 14, 2022 due to
his lack of participation and involvement. And they had reached
out to him via email, phone, and mail.
The caseworker testified that BCDJFS had also required Father to receive a mental health
assessment and to attend anger management/domestic violence classes, neither of which
the caseworker testified Father had ever even started.
{¶21} The caseworker then testified regarding the children and their bond with their
respective foster families. Specifically, as it relates to the two older children, M.G. and S.G.,
the case worker testified that both children were then in counseling and that:
[S.G.] had some behavioral issues when he first came. He also
was doing some bedwetting and stuff as well when he was first
5. Zoom is a cloud-based technology platform used for live, two-way video conferencing. Zoom was utilized
by a variety of different entities during the height of the COVID-19 pandemic to facilitate remote work,
meetings, and other proceedings. This includes the majority of oral arguments conducted before this court
during 2020 and 2021. Zoom is available on computers through a download on the Zoom website or on
mobile devices through the installation of a free application.
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placed. Since then, he has been doing very well. He has started
kindergarten.
[M.G.] did go into first grade. They were concerned with her
academics at the beginning, but she did some summer school.
But now that she's into the first grade, they do think that an IEP
is going to be necessary in order to help her, you know,
continue.
{¶22} The caseworker then testified that the two younger children, D.G. and A.G.,
were "doing very well, and they are excelling." Testifying further, the caseworker stated:
[D.G.], when he was first brought into the agency, they believed
that he was deaf. After an evaluation it was determined by
Children's [Hospital], it was determined he was not deaf. * * * He
is delayed at the moment, but he has been – they've been
receiving Help Me Grow services and some intervention.6
[D.G.] was just recently evaluated by the school psychologist,
because he was turning 3. So, he's aging out of Help Me Grow.
So, he was evaluated and he's going to be receiving speech and
occupational therapy that's due to his developmental delays.
And with [A.G.], currently he's not showing any developmental
delays, but there are future concerns because he was positive
for THC as a baby.
{¶23} Concluding, the caseworker testified that the children's needs were being met
by their respective foster families and that BCDJFS did not have any concerns about
whether the children's needs would continue to be met by their foster families in the future.
The caseworker therefore testified that she believed granting permanent custody of the
children to BCDJFS was in the children's best interest. Father's counsel, Attorney Martin,
then rose for cross-examination and asked the caseworker the following three questions:
Q: You stated that the agency was involved since October of
2020? Is that right?
A: Yes, ma'am.
Q: Okay. Did – was the removal on April 23rd of '21 though?
6. Help Me Grow is a voluntary program that provides assistance with, and information about, development,
parenting, and family support.
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A: Yes.
Q: Okay. So, your involvement prior to that date in April was on
a voluntary safety plan, right?
A: Yes.
Q: Okay. That's all I have, Your Honor.
The juvenile court then excused the caseworker as a witness.7
{¶24} The children's guardian ad litem, the only other witness to testify, was then
called to the stand. The guardian ad litem testified that she believed "that permanent
custody would be best for the children" because they "definitely need some stability in their
life." The guardian ad litem also testified that she believed placing the children with Father
was "not appropriate" for the children at that time. Father's counsel, Attorney Martin, did
not ask the guardian ad litem any questions. Following one question from Mother's counsel,
the state then rested. The juvenile court then addressed Mother and confirmed with Mother
that she was knowingly, intelligently, and voluntarily forfeiting her parental rights to the
children. The juvenile court also confirmed with Mother that she agreed that it was in the
children's best interest for BCDJFS to be awarded permanent custody of the children.
The Juvenile Court's Decision Granting BCDJFS' Motion for Permanent Custody
{¶25} Following this brief exchange with Mother, the juvenile court noted that it
would be issuing a short decision setting forth its decision to grant permanent custody of
the children to BCDJFS. In so doing, the juvenile court stated:
I am going to [grant BCDJFS permanent custody of the
children]. I am going to make an oral indication of that now. And
it – my entry today will reflect that I have – there is – the
evidence presented has not been – has not been really
challenged in any significant way given Father's not being here
7. Father also claimed during oral argument that his counsel, Attorney Martin, did not ask the caseworker any
questions during the hearing on BCDJFS' motion for permanent custody. As can be seen, the record does
not support this claim.
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today and availing himself to the Court. The case plan services
that have been offered have not been completed. The failure to
have any significant contact not only with his children but with
his counsel is indicative of the overall problem in this case.
{¶26} The juvenile court also stated:
There's been some connection that there was a bond with some
of the older children and not so much with the younger children
(inaudible) given the time of the agency, it's (sic) involvement,
and the length of time the case has been opened, which can be
expected. However, there ha[ve] been ample opportunities
through the services offered to try to give availability and the
ability to have contact. He failed to fulfill that.
{¶27} This was in addition to the juvenile court stating:
I find it most telling that we've had to do an interstate compact
in this case (inaudible) to request that we get information and
we can work with the father. But then at the conclusion of his
times, his positioning is I have a new address and I'm not going
to tell you what it is. That in essence prevents any type of true
evaluation of his perspective or in his position, and his ability to
care for the children. And it – and then fundamentally basically
ends my evaluation of this case at that point. * * * So, my ruling
today will be very minimal in its terminology. I will later
supplement my findings of fact, conclusions of law – findings of
facts and conclusions of law to complete the entry in its entirety.
{¶28} The hearing on BCDJFS' motion for permanent custody was then concluded
and the matter was taken off the record. Shortly thereafter, the juvenile court issued a one-
page judgment entry noting its decision to grant permanent custody of the children to
BCDJFS. The juvenile court also noted within its entry that Father had been properly served
with BCDJFS' permanent custody motion and that "the caseworker had contact with Father
via Zoom on September 6, 2022 and he indicated he was going to appear for today's
hearing." The juvenile court further noted that Father's counsel, Attorney Martin, had moved
to withdraw as Father's counsel due to Father's failure to appear, but that the motion had
been denied "due to the nature of this hearing." The juvenile court noted that the same was
true as it related to Attorney Martin's motion to continue.
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The Juvenile Court's Findings of Fact and Conclusions of Law
{¶29} On October 19, 2022, the juvenile court issued a nine-page entry setting forth
its findings of fact and conclusions of law supporting its earlier permanent custody decision.
The juvenile court stated within this entry its finding the children had been in the temporary
custody of BCDJFS since the emergency shelter care hearing held on April 23, 2021, well
over 12 months of a consecutive 22-month period. The juvenile court also stated within this
entry its finding neither Mother nor Father had remedied any of the issues that had caused
the children's removal from their care, "thus the children were prevented from going home."
The juvenile court found this to be the case even though BCDJFS had made reasonable
efforts to eliminate the children's continued removal from their parents' care. The juvenile
court further stated within this entry its finding the children were in need of a legally secure
permanent placement, something which the juvenile court found "only can be derived from
a grant of permanent custody to BCDJFS."
{¶30} The juvenile court then set forth two additional considerations that it found
significant to its permanent custody decision. The first being Mother's consent to have her
parental rights to the children terminated and agreement that permanent custody of the
children should be awarded to BCDJFS. The second being Father's failure to appear at the
permanent custody hearing despite Father having notice of when and where the hearing on
BCDJFS' permanent custody motion was to take place. Specifically, as the juvenile court
stated:
Also, determinative in the Court's ruling was Father's failure to
attend the permanent custody hearing. On the record, the Court
inquired to his attorney, court staff and BCDJFS representative
to verify proper service and attempted personal contact with
Father. Upon questioning all present, the Court finds [Father]
was legally served and was personally aware of the hearing.
Consistent with other hearings that Father did not attend. His
counsel, Vivian Martin, requested to be released from case prior
to the hearing. In an attempt to preserve his rights, her request
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was denied. Counsel for Father was present during the hearing
and engaged in advocating for him.
The juvenile court then concluded its entry by noting its finding the children's best interests
would be served by granting permanent custody to BCDJFS.
Father's Appeal and Four Assignments of Error for Review
{¶31} On November 14, 2022, Father filed a notice of appeal from the juvenile
court's decision granting permanent custody of the children to BCDJFS. Oral argument
was held before this court on April 3, 2023. Father's appeal now properly before this court
for decision, Father has raised four assignments of error for review. For ease of discussion,
we will address Father's four assignments of error out of order.
Assignment of Error No. 2:
{¶32} THE COURT ERRED IN ALLOWING HEARSAY TESTIMONY IN
DETERMINING WHETHER TO TERMINATE THE APPELLANT'S PARENTAL RIGHTS.
{¶33} In his second assignment of error, Father argues the juvenile court erred and,
in fact, committed plain error, by allowing otherwise inadmissible hearsay testimony into
evidence at the hearing on BCDJFS' motion for permanent custody. We disagree.
Admission or Exclusion of Evidence and Plain Error Standard
{¶34} Generally, this court will not reverse a lower court's decision regarding the
admission of evidence absent an abuse of discretion. In re A.S., 183 Ohio App.3d 697,
2009-Ohio-3932, ¶ 53 (12th Dist.). This holds true even in permanent custody cases. In re
R.B., 12th Dist. Butler Nos. CA2022-01-003 and CA2022-01-004, 2022-Ohio-1705, ¶ 23.
Father, however, did not object to any of the testimony for which he now complains. By
failing to object, Father has waived all but plain error on appeal. In re B.J. & L.J., 12th Dist.
Warren Nos. CA2016-05-036 and CA2016-05-038, 2016-Ohio-7440, ¶ 61. A finding of plain
error is strictly limited, extremely rare, and occurs only in exceptional circumstances. In re
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A.D., 12th Dist. Clermont No. CA2021-11-060, 2022-Ohio-736, ¶ 17, citing In re T.J., 12th
Dist. Preble No. CA2008-10-019, 2009-Ohio-1844, ¶ 34; In re J.W., 12th Dist. Butler Nos.
CA2017-12-183 and CA2017-12-184, 2018-Ohio-1781, ¶ 13. This is because the plain
error doctrine implicates only those errors "that are 'obvious and prejudicial although neither
objected to nor affirmatively waived which, if permitted, would have a material adverse
[e]ffect on the character and public confidence in judicial proceedings.'" In re J.M., 12th
Dist. Butler Nos. CA2018-06-124 and CA2018-06-125, 2019-Ohio-3716, ¶ 14, quoting
Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982).
Father's Argument and Analysis
{¶35} Father argues it was plain error for the juvenile court to allow into evidence
the caseworker's "entire testimony" about what took place during Father's limited
supervised visitation time with the children. Father also argues it was plain error for the
juvenile court to allow the caseworker to testify about the bond, or lack thereof, between
Father and the children. This is because, according to Father, the caseworker's testimony
was "predominately" hearsay that was lacking a proper foundation since it was not the
caseworker who supervised any of Father's visitation time with the children.8 Hearsay is
inadmissible in hearings on motions for permanent custody. In re W.R., 12th Dist. Fayette
No. CA2011-08-016, 2012-Ohio-382, ¶ 22. "However, it is well-established that as the fact-
finder, a juvenile court is presumed to have considered only properly admissible evidence
unless the record affirmatively demonstrates otherwise." In re H.D., 12th Dist. Warren No.
8. Father claimed during oral argument that there was no evidence the testifying caseworker either supervised
or was ever even present during any of Father's visitation time with the children. Once again, the record does
not support this claim. The record instead indicates that the caseworker was present and supervised two of
the three in-person visits Father had with the children. Specifically, as the case worker testified, "The other
couple of visits that I supervised myself, because that was prior to me being the caseworker, but the other in-
person visitations that I had supervised myself, [Father was] more engaged." The caseworker testified this
was the case even though D.G. was "very disengaged," A.G. would cry "excessively," and S.G. "kept asking
to leave the room and asking for his caseworker" during these two visits.
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CA2016-11-098, 2017-Ohio-1333, ¶ 8, citing In re A.F., 12th Dist. Butler No. CA2011-12-
233, 2012-Ohio-2958, ¶ 33.
{¶36} Father has failed to overcome this presumption. Father has also failed to
demonstrate how the admission of such evidence subjected him to any resulting prejudice.
See In re K.B., 12th Dist. Butler Nos. CA2014-02-042 thru CA2014-02-044, 2014-Ohio-
3654, ¶ 83 ("the admission of hearsay evidence in cases involving the termination of
parental rights, even if error, is not considered prejudicial unless it is shown that the judge
relied on improper evidence in making his decision"); see also In re O.H., 9th Dist. Summit
No. 25761, 2011-Ohio-5632, ¶ 26 ("[w]here an out-of-court statement is erroneously
admitted, it must still be evaluated for prejudice"). We find this particularly true here when
considering the caseworker's testimony was predominantly, if not wholly, cumulative to the
other evidence contained within the record. This includes, among other things, the guardian
ad litem's various reports and recommendations submitted to the juvenile court. Therefore,
given the record properly before this court, the juvenile court did not err, let alone commit
plain error, by allowing the caseworker to testify about what happened during Father's
limited supervised visitation time with the children. The same is true as it relates to the
caseworker's testimony about the bond, or lack thereof, between Father and the children.
Accordingly, finding no merit to any of Father's arguments advanced herein, Father's
second assignment of error lacks merit and is overruled.
Assignment of Error No. 3:
{¶37} THE COURT ERRED WHEN IT FOUND BCDJFS MADE REASONABLE
EFFORTS TO REUNIFY FATHER WITH HIS CHILDREN.
{¶38} In his third assignment of error, Father argues the juvenile court erred by
finding BCDJFS had made reasonable efforts to reunify him with the children. We disagree.
Reasonable Efforts Standard
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{¶39} R.C. 2151.419(A)(1) requires a juvenile court, before it terminates a parent's
parental rights, "to determine whether reasonable efforts have been made to reunify the
family, which the children services agency has the burden of proving." In re V.R.R., 12th
Dist. Butler No. CA2022-08-079, 2023-Ohio-185, ¶ 23. The term "reasonable efforts" has
not been statutorily defined by R.C. 2151.419 or by R.C. Chapter 2151 as a whole. In re
A.B., 12th Dist. Clermont Nos. CA2022-05-022 and CA2022-05-023, 2022-Ohio-4716, ¶
17; In re Colter, 12th Dist. Madison No. CA89-07-011, 1990 Ohio App. LEXIS 1459, *6 (Apr.
16, 1990). The term "reasonable efforts" has nevertheless been construed by the Ohio
Supreme Court to mean "[t]he state's efforts to resolve the threat to the child before
removing the child or to permit the child to return home after the threat is removed." In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28. This necessarily requires the relevant
children services agency to "act diligently and provide services appropriate to the family's
need to prevent the child's removal or as a predicate to reunification." In re L.G., 8th Dist.
Cuyahoga No. 110789, 2022-Ohio-529, ¶ 60. That is to say, the applicable children
services agency "must use reasonable efforts to help remove the obstacles preventing
family reunification." Id.{¶40} What constitutes "reasonable efforts" does not mean all available efforts,
however. In re F.S., 12th Dist. Fayette Nos. CA2020-08-011 and CA2020-08-012, 2021-
Ohio-345, ¶ 70. "Otherwise, there would always be an argument that one more additional
service, no matter how remote, may have made reunification possible." In re K.B., 12th
Dist. Clermont Nos. CA2015-01-011 and CA2015-01-012, 2015-Ohio-2732, ¶ 50. To that
end, "[w]hen examining whether a children services agency made reasonable efforts to
reunify a family, the issue is not whether the agency could have done more, but whether it
did enough to satisfy the reasonableness standard under the statute." In re T.P., 12th Dist.
Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 29. Whether a children services agency has
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met that standard varies with the circumstances of each individual case. In re A.B., 2022-
Ohio-4716 at ¶ 18; In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-
916, ¶ 76. However, although the question of whether the applicable children services
agency made reasonable efforts towards reunification varies with the circumstances of each
individual case, what does not vary is that the health and safety of the children must remain
paramount. In re E.P., 12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023, 2010-
Ohio-2761, ¶ 15, citing R.C. 2151.419(A)(1).
Father's Argument and Analysis
{¶41} Father argues the juvenile court erred by finding BCDJFS had made
reasonable efforts towards reunification because he was not "offered any services" by
BCDJFS and because BCDJFS did not require him "to complete any case plan services"
given the approved ICPC home study he received from his home state of South Carolina.
However, although we generally agree with Father's assertion that "he can not (sic)
complete what he was not offered," the record firmly establishes that BCDJFS offered
Father a multitude of services which Father either did not complete or did not engage in at
all in the months leading up to the permanent custody hearing. This is evidenced by the
case plan approved by the juvenile court for Father on January 5, 2022, which required
Father to obtain a mental health assessment and to complete parenting classes and an
anger management/domestic violence education course. This case plan also required
Father to physically appear and attend parenting time with the children twice a month so
that he could develop a bond with the children. The record indicates that Father was well
aware of the services BCDJFS included in the case plan and that Father chose, for
whatever reason, to either not complete those services or not to engage in those services
at all. Therefore, because the record refutes Father's claim that BCDJFS had not offered
him any services and had not required him to complete any case plan services given the
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approved ICPC home study from his home state of South Carolina, Father's third
assignment of error also lacks merit and is overruled.
Assignment of Error No. 4:
{¶42} THE COURT'S GRANTING PERMANENT CUSTODY TO BCDJFS IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶43} In his fourth assignment of error, Father argues the juvenile court's decision
granting permanent custody of the children to BCDJFS was against the manifest weight of
the evidence. Father also argues the juvenile court's decision to grant permanent custody
of the children to BCDJFS was not supported by sufficient evidence.9 We disagree with
both of Father's claims.
Permanent Custody Manifest Weight and Sufficiency of the Evidence Standards
{¶44} Before a natural parent's constitutionally protected liberty interest in the care
and custody of his child 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 R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074, ¶
14, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). "An 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.
"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
9. We note that, although Father's fourth assignment of error indicates that he is challenging just the juvenile
court's decision as being against the manifest weight of the evidence, Father also alleges within the body of
his appellate brief that the juvenile court's decision was not supported by sufficient evidence. This occurs
most notably within Father's conclusionary paragraph, wherein Father states that "[t]here is insufficient
evidence to terminate [his] parental rights." Therefore, in an abundance of caution, we will analyze the juvenile
court's decision granting permanent custody to BCDJFS under both the sufficiency and manifest weight of the
evidence standards of review.
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of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-04-006, 2020-Ohio-4414, ¶ 15,
quoting In re T.P., 2016-Ohio-72 at ¶ 19.
{¶45} In determining whether a juvenile court's decision 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. "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.
Father's Argument and Analysis
{¶46} Father argues the juvenile court's decision to grant permanent custody of the
children was not supported by sufficient evidence and was against the manifest weight of
the evidence because the "evidence presented by BCDJFS [was] inadmissible hearsay"
and because he "was not given case plan services." Father also argues the juvenile court's
decision to grant permanent custody of the children to BCDJFS was not supported by
sufficient evidence and against the manifest weight of the evidence because the children
were removed from Mother, not from him, and because he had an ICPC approved home
study from his home state of South Carolina. "The decision to terminate a parent's parental
rights requires serious consideration and should not be taken lightly." In re L.H., 1st Dist.
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Hamilton No. C-220161, 2022-Ohio-2755, ¶ 53. This is because, in Ohio, the permanent
termination of one's parental rights is likened to the family-law equivalent of the death
penalty. In re R.K., 152 Ohio St.3d 316, 2018-Ohio-23, ¶ 1, citing In re D.A., 113 Ohio St.3d
88, 2007-Ohio-1105, ¶ 10; and In re Hayes, 79 Ohio St.3d 46, 48 (1997).
{¶47} However, after a thorough review of the record, we find the juvenile court's
decision to grant permanent custody of the children to BCDJFS was supported by sufficient
evidence and not against the manifest weight of the evidence. This is because, as a simple
review of the record reveals, the juvenile court's decision to grant permanent custody was
supported by the clear and convincing evidence presented at the permanent custody
hearing. This includes the testimony from the children's caseworker that Father was not in
any way bonded with the children, whereas S.G. was doing "very well" with his foster family,
and that the two younger children, D.G. and A.G., were "doing very well, and they are
excelling" with their foster families.
{¶48} This also includes the caseworker's testimony that the children's needs were
being met by their respective foster families and that BCDJFS did not have any concerns
about the children's needs being met going forward. This is in addition to the children's
guardian ad litem's testimony that the children's best interests would be served by granting
permanent custody to BCDJFS because the children "definitely need some stability in their
life," which Father could not provide. Therefore, finding no merit to Father's claims alleging
the juvenile court's decision to grant BCDJFS permanent custody of the children was not
supported by sufficient evidence and was against the manifest weight of the evidence,
Father's fourth assignment of error lacks merit and is overruled.
{¶49} In so holding, we note Father's argument made during oral argument claiming
the juvenile court relied on Father's prior conviction for felony unlawful neglect of a child to
grant permanent custody of the children to BCDJFS. This is simply not true as there was
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no mention of Father ever being convicted of any crime, let alone felony unlawful neglect of
a child, within the juvenile court's permanent custody decision. And, contrary to what both
Father and BCDJFS stated during oral argument, there was also no mention of Father's
criminal history, if any, at the hearing on BCDJFS' motion for permanent custody. The only
references this court could find to Father's purported conviction for felony unlawful neglect
of a child was one brief mention in BCDJFS' abuse, neglect, or dependency complaint, a
reference that was then repeated within the guardian ad litem's various reports and
recommendations submitted to the juvenile court.
{¶50} However, even then, neither BCDJFS nor the guardian ad litem ever alleged
that Father had been convicted of felony unlawful neglect of a child. Rather, BCDJFS and
the guardian ad litem alleged only that Father had been charged with that offense. Being
charged with a crime is vastly different than being convicted of a crime because, unlike a
charge, "a 'conviction' consists of a guilty verdict and the imposition of a sentence or
penalty." (Emphasis sic.) State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, ¶ 12. Being
charged with a crime also carries with it the presumption of innocence. This presumption
remains until and unless that person is proven guilty beyond a reasonable doubt by the
state. See R.C. 2901.05(A) ("[e]very person accused of an offense is presumed innocent
until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of
the offense is upon the prosecution"). Therefore, despite Father's claims, the juvenile court
did not in any way rely on Father's purported prior conviction for felony unlawful neglect of
a child in granting permanent custody to BCDJFS.
Assignment of Error No. 1:
{¶51} THE COURT ERRED IN TERMINATING THE APPELLANT'S PARENTAL
RIGHTS AS COUNSEL FOR THE APPELLANT WAS INEFFECTIVE.
{¶52} In his first assignment of error, Father argues his trial counsel, Attorney
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Martin, provided him with ineffective assistance. This is because, according to Father,
Attorney Martin performed "well below" what he considers professionally competent
assistance. We disagree.
Ineffective Assistance of Counsel Standard
{¶53} "A parent is entitled to the effective assistance of counsel in cases involving
the involuntary termination of his or her parental rights." In re L.J., 12th Dist. Warren No.
CA2014-10-124, 2015-Ohio-1567, ¶ 33. This is because parental rights involve a
fundamental liberty interest, procedural due process, which includes the right to effective
assistance of counsel. In re C.D., 12th Dist. Brown No. CA2009-07-030, 2009-Ohio-6922,
¶ 22. "When 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 G.W., 12th Dist. Butler No. CA2013-12-246, 2014-Ohio-2579,
¶ 12. "That is to say, the 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." In re M.H., 12th Dist. Clermont Nos. CA2021-08-047 thru CA2021-
08-049, 2022-Ohio-48, ¶ 29, citing In re C.S., 12th Dist. Warren No. CA2018-07-080, 2018-
Ohio-4786, ¶ 33. "A strong presumption exists that licensed attorneys are competent and
that the challenged action is the product of a sound trial strategy and falls within the wide
range of professional assistance." In re J.J., 12th Dist. Butler No. CA2005-12-525, 2006-
Ohio-2999, ¶ 58.
Father's Four Arguments and Analysis
{¶54} Father claims that, but for his trial counsel's "poor performance" throughout
the underlying proceedings, the juvenile court would have returned the children to him rather
than granting permanent custody of the children to BCDJFS. To support this claim, Father
raises four arguments for our consideration. We address each of Father's four arguments
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in turn.
Father's First Argument
{¶55} Father initially argues his trial counsel, Attorney Martin, was ineffective for not
filing a motion to dismiss BCDJFS' complaint when considering the complaint alleged only
"minimal bad conduct" on his part and did not show how he was a danger to the children.
However, the time for Father to challenge the allegations set forth within BCDJFS' complaint
has long since passed and is now barred by the doctrine of res judicata. See, e.g., In re
R.D., 12th Dist. Clermont Nos. CA2021-05-017 and CA2021-05-018, 2021-Ohio-3780, ¶ 46
("because [a mother] did not file an appeal from the juvenile court's adjudicatory decision
and temporary custody order granting temporary custody of [her two children] to [a county
department of job and family services], [the mother was] 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").
{¶56} Moreover, even if not barred by the doctrine of res judicata, Attorney Martin
moving to dismiss BCDJFS' complaint by arguing the complaint alleged only "minimal bad
conduct" on Father's part and did not show how he was a danger to the children would have
been futile given BCDJFS' other allegations set forth within the complaint related to Mother.
This includes, but is not limited to, BCDJFS' allegation that Mother had tested positive for
THC at the time of A.G.'s birth. This also includes BCDJFS' allegation that Mother had
admitted to smoking THC on a regular basis. "An attorney is not ineffective for failing to
make a futile or frivolous request." State v. White, 12th Dist. Madison Nos. CA2021-05-007
and CA2021-05-008, 2022-Ohio-2182, ¶ 14. This holds true even in permanent custody
cases such as this. See In re C.B., 8th Dist. Cuyahoga No. 111456, 2022-Ohio-3136, ¶ 31.
Therefore, even if not barred by the doctrine of res judicata, Father's first argument lacks
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merit.
Father's Second Argument
{¶57} Father also argues Attorney Martin was ineffective for not moving to dismiss
the complaint because none of the allegations set forth within the complaint were pled with
specificity and because the complaint failed to state how the children were in any way
harmed while they were in his care. However, just as with Father's first argument, Father's
second, alternative argument is also barred by the doctrine of res judicata. In re R.D., 2021-
Ohio-3780 at ¶ 46. But, even if it was not, Attorney Martin moving to dismiss BCDJFS'
complaint on this alternative basis would have also been futile. This is because, as the
record indicates, the allegations set forth in the complaint were pled with more than enough
specificity to overcome any Civ.R. 12(B)(6) motion to dismiss. See State ex rel. T.P. v.
Franklin Cty. Children Services, 10th Dist. Franklin No. 18AP-163, 2018-Ohio-4129 (noting
in an underlying permanent custody case that "it must appear beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery" in order for "a
court to dismiss a complaint for failure to state a claim upon which relief can be granted"
pursuant to Civ.R. 12[B][6]). This includes, as noted above, BCDJFS' claim that Mother
had tested positive for THC at the time of A.G.'s birth and that Mother had admitted to
smoking THC on a regular basis. Again, even in permanent custody cases, "[c]ounsel
cannot be deficient for failing to assert a futile claim." In re M.C., 4th Dist. Scioto No.
16CA3755, 2016-Ohio-8294, ¶ 20. Therefore, even if not barred by the doctrine of res
judicata, Father's second argument also lacks merit.
Father's Third Argument
{¶58} Father additionally argues Attorney Martin was ineffective for not moving the
juvenile court to return the children to him and instead doing "nothing" towards reunification
while this case was pending. Father, however, does not provide this court with any
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examples of what he believes Attorney Martin should have done differently other than filing
a generic motion "to request that his children be placed in his home." But, acting in the best
interest of the child, a juvenile court must not act on a whim by simply handing over a child
to someone new. This holds true even if that person is the child's biological father. This is
because, as this court has stated previously, "[a] child's life is not an experiment that can
be left to chance." In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 52.
A child's life also is not something the juvenile court should take a gamble on. This holds
true no matter how good the odds may seem. See, e.g. In re K.W., 4th Dist. Highland Nos.
17CA7 and 17CA8, 2018-Ohio-1933, ¶ 91 ("[w]hile father stated that he did not believe the
child would carry out any threats [of self-harm] and that the child would be fine if placed in
his care, a child's life is not a gamble").
{¶59} Moreover, despite Father's claims, the law does not now, nor has it ever
required a juvenile court to place a child with a parent simply because that parent received
an approved ICPC home study from the parent's home state. The law instead requires a
juvenile court to gauge each case independently based on the totality of the circumstances
and determine what would be in the best interest of the child. See generally In re W.J.T.,
12th Dist. Butler No. CA2019-03-047, 2019-Ohio-3051, ¶ 46 ("[t]he juvenile court, just like
this court, must act in a manner that places [the child's] best interest above all else"). Given
Father's status as the children's biological father, we have no doubt that this is difficult for
Father to appreciate. But, determining what should be done with any given child, while also
protecting the rights of each parent or other parties involved, is a complicated task for the
juvenile court to determine. This is why the General Assembly requires a juvenile court to
consider several statutorily enumerated factors before a person's parental rights to their
children can be terminated. See R.C. 2151.414(D) and 2151.414(E).
{¶60} One such factor the General Assembly requires a juvenile court to consider
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when determining best interest of a child is "[t]he 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." R.C.
2151.414(D)(1)(a). Another factor the General Assembly requires a juvenile court to
consider when determining whether a child cannot be placed with either parent within a
reasonable time or should not be placed with either parent is whether either of the child's
parents have availed themselves to the services offered to them by the children services
agency overseeing his or her child's case. R.C. 2151.414(E)(1). Father did not do that in
this case. Father instead sought—and continues to seek—someone other than himself to
place the blame for his parental rights to the children being terminated. Father's attempts
to shift blame to someone other than himself, including Attorney Martin, are not persuasive
and serve as further support for the juvenile court's decision to grant permanent custody of
the children to BCDJFS. Therefore, Father's third argument likewise lacks merit.
Father's Fourth Argument
{¶61} Father lastly argues Attorney Martin was ineffective for not objecting to "any
of the inadmissible testimony" elicited at the permanent custody hearing and for not asking
any questions of the children's caseworker or the children's guardian ad litem on cross-
examination. However, although we agree that Attorney Martin did not ask any questions
of the guardian ad litem, Attorney Martin did ask questions of the caseworker when given
the opportunity. Given that Attorney Martin actually did ask questions of the caseworker,
Father must necessarily be arguing that Attorney Martin's questioning was inadequate. But,
as this court has stated previously, "there are no rules dictating what amount of cross-
examination is acceptable; rather, this is largely a tactical decision and a matter of trial
strategy." In re Hodge/Burchett, 12th Dist. Butler Nos. CA94-08-170, CA94-09-174, CA94-
09-186, and CA94-09-187, 1995 Ohio App. LEXIS 3246, *12 (Aug. 7, 1995). This means
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that this court, when reviewing an ineffective assistance counsel claim, "must not scrutinize
trial counsel's strategic decision to engage, or not engage, in a particular line of questioning
on cross-examination." In re C.D., 2009-Ohio-6922 at ¶ 23. This is because "[a]ll licensed
attorneys are presumed competent and the challenged actions are presumed to reflect
sound trial strategy within the range of reasonable professional assistance." In re L.B., 8th
Dist. Cuyahoga No. 111766, 2022-Ohio-4748, ¶ 52. Father has not overcome that
presumption here. Therefore, Father's fourth argument similarly lacks merit. Accordingly,
finding no merit to any of Father's four arguments raised herein, Father's fourth assignment
of error alleging he received ineffective assistance of counsel is overruled.
Conclusion
{¶62} For the reasons outlined above, and overruling each of the four assignments
of error advanced by Father, the juvenile court's decision granting BCDJFS permanent
custody of the four children at issue in this case, M.G., S.G., D.G., and A.G., is affirmed.10
{¶63} Judgment affirmed.
M. POWELL, and BYRNE, JJ., concur.
10. Father attempted to raise several new arguments for this court's consideration during oral argument that
were not contained within his appellate brief. Father, however, cannot advance any new arguments during
oral argument. See Simmons v. Budde, 10th Dist. Franklin No. 14AP-846, 2015-Ohio-3780, ¶ 10; see also
Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, ¶ 20 (1st Dist.) ("an issue raised during oral
argument for the first time and not assigned as error in an appellate brief is waived"), citing Watkins v. Dept.
of Human Servs., 10th Dist. Franklin No. 00AP-224, 2000 Ohio App. LEXIS 5018 (Oct. 31, 2000). Therefore,
any new arguments that Father may have raised during oral argument that were not otherwise addressed
herein, those arguments have been waived.
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