In re D.D. , 2019 Ohio 4646 ( 2019 )

[Cite as In re D.D., 2019-Ohio-4646.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. W. Scott Gwin, P. J.
IN THE MATTER OF: Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
D.D. Case No. CT2019-0025
A Dependent Child OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No.
21730238
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 8, 2019
APPEARANCES:
For Appellee For Appellant
D. MICHAEL HADDOX MICHAEL J. CONNICK
PROSECUTING ATTORNEY MICHAEL J. CONNICK CO., LPA
GERALD V. ANDERSON, II 301 Main Street
ASSISTANT PROSECUTOR Suite H
27 North Fifth Street Zanesville, Ohio 43701
Zanesville,Ohio 43701
Muskingum County, Case No. CT2019-0025 2
Wise, J.
{¶1} Appellant Jacqueline S. appeals the decision of the Muskingum County
Court of Common Pleas, Juvenile Division, which granted permanent custody of her
daughter, D.D., to Appellee Muskingum County Children Services (“MCCS”). The
relevant facts leading to this appeal are as follows.
{¶2} On November 6, 2017, Appellee MCCS filed a complaint in the trial court
alleging that D.D., born November 2017, was neglected and/or dependent. Initial
concerns were that appellant had tested positive for methamphetamine, cocaine, and
marijuana upon admission to the maternity unit. Appellant was also reported to have
several mental health issues. The man who was alleged at the time to be D.D.’s father,
Jason D., was alleged to have a lengthy criminal record and a history of abusive
treatment of appellant.1
{¶3} The trial court thereupon ordered the child into the temporary custody of
MCCS.
{¶4} A case plan was filed with the trial court on December 6, 2017, with no
objections thereto. D.D. was adjudicated a dependent and neglected child on February
1, 2018. The court ordered her to be maintained in the temporary custody of MCCS.
{¶5} On July 23, 2018, MCCS filed a motion for permanent custody, which was
scheduled for a hearing on December 18, 2018. In the meantime, on November 5, 2018,
the court conducted an annual review hearing; however, appellant did not appear.
1 On February 23, 2018, MCCS notified the trial court that Jason D. had been excluded
as the child’s father by genetic testing. Paternity of the child is apparently still unknown.
Muskingum County, Case No. CT2019-0025 3
{¶6} At the permanent custody trial on December 18, 2018, appellant again failed
to appear. Following the hearing, the court granted permanent custody of D.D. to MCCS,
as further discussed infra. A written judgment entry was journalized on March 5, 2019.
On April 4, 2019, appellant filed a notice of appeal. She herein raises the following sole
Assignment of Error:
{¶7} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I.
{¶8} In her sole Assignment of Error, appellant-mother contends the trial court
erred in granting permanent custody of D.D. to the agency. We disagree.
{¶9} R.C. 2151.414(B)(1) states as follows:
Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines at
the hearing held pursuant to division (A) of this section, by clear and
convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for
permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
Muskingum County, Case No. CT2019-0025 4
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for twelve
or more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
{¶10} For the purposes of division (B)(1) of this section, a child shall be considered
to have entered the temporary custody of an agency on the earlier of the date the child
Muskingum County, Case No. CT2019-0025 5
is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty
days after the removal of the child from home.
{¶11} Furthermore, in determining the best interest of the child in permanent
custody cases, R.C. 2151.414(D)(1) states the trial court must consider all relevant
factors, including, but not limited to: (1) the interaction and interrelationship of the child
with the child's parents, siblings, relatives, foster parents and out-of-home providers, and
any other person who may significantly affect the child; (2) the wishes of the child as
expressed directly by the child or through the child's guardian ad litem, with due regard
for the maturity of the child; (3) the custodial history of the child; and (4) the child's need
for a legally secure permanent placement.
{¶12} Because custody issues are some of the most difficult and agonizing
decisions a trial judge must make, he or she must have wide latitude in considering all
the evidence and such a decision must not be reversed absent an abuse of discretion.
Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller
(1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate court, we are not the trier
of fact; instead, our role is to determine whether there is relevant, competent, and
credible evidence upon which the factfinder could base his or her judgment. Tennant v.
Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing
Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911.
{¶13} As noted in our recitation of the facts, the trial court conducted the
permanent custody trial in this matter on December 18, 2018. MCCS called as its
witnesses (1) Cinda Graham from All Well Behavioral Health, (2) MCCS Caseworker
Carly Bates, and (3) D.D.’s foster mother. Appellant was not present for the trial, and her
Muskingum County, Case No. CT2019-0025 6
trial attorney did not object to any of the testimony or reports presented by MCCS.2
Where no objection is raised to a line of questioning, an appellant waives all but plain
error. Ralph v. Behr, 5th Dist. Richland No. 16 CA 42, 2017-Ohio-1533, ¶ 31, citing
Harper v. Roberts, 173 Ohio App.3d 560, 2007–Ohio–5726, ¶ 9 (8th Dist. Cuyahoga).
Plain error review is not favored in appeals of civil cases. Kirin v. Kirin, 7th Dist. Mahoning
No. 08 MA 243, 2011–Ohio–663, 2011 WL 497080, ¶ 19, quoting Goldfuss v. Davidson,
79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at paragraph one of the syllabus. To
constitute plain error in a civil case, the error must be “obvious and prejudicial” and “if
permitted, would have a material adverse effect on the character and public confidence
in judicial proceedings.” In re M.H., 5th Dist. Fairfield No. 2016 CA 43, 2017-Ohio-1110,
¶ 24, citing Friedland v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th Dist.).
We will herein proceed under a plain error standard of review.
{¶14} Appellant’s brief at several points criticizes the agency’s handling of this
matter, while ignoring the evidence that appellant did not visit with D.D. after February
2018 (Tr. at 12), and, in her last known contact with the agency in March 2018, had
informed caseworkers that she was not willing to work with them on any services and did
not want to reunify with the child. Tr. at 21. Information was provided to the court at the
permanent custody trial that she had possibly relocated to New York or Florida. Tr. at
22-23. The child’s maternal grandmother was, for a time, assessed for relative
2 The trial court specifically found that appellant and the unknown father were “duly and
properly served.” Judgment Entry, March 5, 2019, at 1. Appellant nonetheless makes the
assertion in her statement of the case that she did not receive notice of the trial date. See
Appellant’s Brief at 5. However, a question of personal jurisdiction may not be raised for
the first time on appeal. Trilogy Health Services, LLC v. Frenzley, 5th Dist. Muskingum
No. CT2017-0070, 2018-Ohio-1790, ¶ 8, citing In re Bailey Children, 5th Dist. Stark No.
2004CA00386, 2005–Ohio–2981.
Muskingum County, Case No. CT2019-0025 7
placement, but the grandmother eventually withdrew from consideration. Tr. at 19.
Evidence was also adduced that appellant had begun her assessments and drug
screens, but then failed to follow through with treatment and did not successfully
complete any objective on her case plan. Tr. at 17. Likewise, Cinda Graham from All
Well Behavioral recalled that after November 28, 2017, appellant “kept cancelling and
not showing” and thus did not complete her recommended substance abuse and mental
health programs. Tr. at 7-8.
{¶15} We note that “*** courts have found an implied exception to mandatory case
planning efforts when those efforts would be futile.” In re Leitwein, 4th Dist. Hocking No.
03CA18, 2004-Ohio-1296, ¶ 30. Appellant essentially now chooses to reprove the
agency in a situation where she ultimately showed no interest in the agency’s
reunification efforts. She seems to fault the caseworker who took over in April 2018 for
not having contact with her, and then resorts to classifying the utilization of this
caseworker as a witness by the agency as “an unbelievable display of mind-numbing
laziness ***.” Appellant’s Brief at 8. Additionally, with no legal support, appellant attempts
to dismiss the entirety of the GAL’s report as inadmissible hearsay. Id.{¶16} However, in this instance, we are persuaded that the trial court, relying on
R.C. 2151.414(B)(1)(a), 2151.414(D)(1), and 2151.414(E), duly heard the evidence and
rendered a cogent, lawful decision accordingly. Upon review of the record and the
findings of fact and conclusions of law therein, we find no basis to alter the decision of
the trier of fact, and we conclude the grant of permanent custody of D.D. to MCCS was
made in the consideration of the child's best interests, was not against the manifest
weight of the evidence, and did not constitute plain error.
Muskingum County, Case No. CT2019-0025 8
{¶17} Appellant's sole Assignment of Error is therefore overruled.
{¶18} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 1024