In re A.M. ( 2017 )

[Cite as In re A.M., 2017-Ohio-911.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: A.M. C.A. Nos. 28348
28352
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 14 08 0533
DECISION AND JOURNAL ENTRY
Dated: March 15, 2017
CARR, Judge.
{¶1} Appellant, Samuel R. (“Father”), appeals from the judgment of the Summit
County Court of Common Pleas, Juvenile Division, that terminated his parental rights to his
minor child and placed her in the permanent custody of Summit County Children Services
(“CSB”). This Court affirms.
I.
{¶2} Father and Angela M. (“Mother”) are the unmarried parents of A.M., born August
15, 2014. Mother participated in the trial court proceedings and filed a notice of appeal, but did
not file an appellate brief. Accordingly, her appeal is dismissed. See App.R. 18(C).
{¶3} On August 18, 2014, CSB filed a complaint in juvenile court, alleging that A.M.
was a dependent child based on concerns about Mother’s substance abuse during her pregnancy
as well as during a prior children services case involving an older child, S.H. The agency
obtained emergency temporary custody from the court. The father of A.M. was unknown at the
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time. Subsequently, the trial court adjudicated A.M. to be a dependent child and granted
temporary custody to CSB. The agency placed the child in the care of the same foster parents
that had placement of S.H., Mother’s older child. Mother’s case plan focused on substance
abuse, mental health, and basic needs. Paternity was established by genetic testing in September
2014. Father was incarcerated when the case began, but participated in key hearings by video
teleconferencing or in person.
{¶4} During the following two years, Mother participated in the Family Reunification
through Recovery Court (“FRRC”), which held bi-weekly meetings at the juvenile court. She
engaged in counseling at the Community Health Center on two separate occasions for
approximately three months each time. Her counselor testified that Mother had a long-term
history of substance abuse, including the use of methamphetamine and opiates. The counselor
stated that her treatment focused on relapse prevention, healthy decision making skills, and sober
supports. Her major concern was Mother’s ability to maintain sobriety outside of a structured
environment. Mother also received CSB case management services. Father had a case plan as
well, but was incarcerated for all but about two months of this proceeding and was scheduled for
release approximately one year after the permanent custody hearing.
{¶5} CSB moved for permanent custody on January 25, 2016. Mother sought custody
for herself. Father supported an award of custody to Mother or, alternatively, that A.M. be
placed with friends or relatives. Following a hearing, the trial court terminated the parents’
parental rights and placed A.M. in the permanent custody of CSB. Both parents filed notices of
appeal, but only Father filed an appellate brief. Father has assigned five errors for review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S DECISION DENYING FATHER’S MOTION FOR A
SIX-MONTH EXTENSION OF TEMPORARY CUSTODY WAS NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶6} Father claims that the trial court erred in denying his motion for an extension of
temporary custody. Pursuant to R.C. 2151.415(D), Father claims that such an extension would
be in the best interest of the child, that Mother made significant progress on the case plan, and
that there was reasonable cause to believe the child would be reunified with a parent or otherwise
permanently placed within the period of an extension. In support of his claim that Mother made
significant progress on her case plan, Father asserts that Mother did well in visits with A.M., and
engaged in counseling, mental health services, and substance abuse services.
{¶7} The trial court denied Father’s motion for several reasons, all of which we find to
be well supported by the record. First, the trial court found, contrary to Father’s claim, that
neither parent had established case plan compliance. The record demonstrates that Mother had
used illegal substances as recently as one week before the permanent custody hearing and she
only had housing for three weeks, not long enough to be deemed stable. Furthermore, Mother
had not been visiting her daughter regularly in recent months and Mother acknowledged that that
was due to her “active addiction.” The relatives named by the parents as potential custodians
had no relationship with the child and had not made any efforts to visit her during this case. No
relative had moved for legal custody. Finally, the trial court indicated that the case would shortly
be two years old and the court was unable to extend legal custody long enough to permit Mother
to demonstrate sobriety.
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{¶8} Accordingly, the trial court did not err in denying Father’s motion for an
extension of temporary custody. Father’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF
THE MINOR CHILD TO SUMMIT COUNTY CHILDREN SERVICES
BOARD WHEN THE SUMMIT COUNTY CHILDREN SERVICES BOARD
DID NOT USE REASONABLE EFFORTS AT REUNIFICATION AND
FINDING A KINSHIP PLACEMENT.
{¶9} Father claims that CSB failed to make reasonable efforts towards reunification of
the family and cites three examples: (1) the agency did not take A.M. to visit Father in prison,
(2) the agency did not fully explore a kinship placement with Mother’s brother, and (3) the
agency independently decreased Mother’s visitation with A.M.
{¶10} Although, as CSB asserts, a trial court is not always required to make a
reasonable efforts determination at the time of the permanent custody trial, see R.C.
2151.419(A)(1), the Ohio Supreme Court has emphasized that “[b]ased on the constitutional
implications of terminating parental rights and the importance of requiring reasonable
reunification efforts that pervades federal and Ohio law, * * * the State must have made
reasonable efforts to reunify the family prior to the termination of parental rights.” (Emphasis
added.) In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, ¶ 21. The In re C.F. court explained
that the State’s responsibility to make reasonable efforts to reunify the family is broad-based and
“[n]o one section of the Revised Code addresses the concept of reasonable efforts.” See In re
C.F. at ¶ 29-31. Moreover, unlike the situation in In re S.D., 9th Dist. Lorain, 2016-Ohio-1493,
Nos. 15CA010864, 15CA010867, ¶ 25, cited by CSB, where neither parent preserved the
challenge for appellate review, Father has preserved these matters for appellate review through
motion or objection. We therefore address each example separately.
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{¶11} First, Father briefly challenges the fact that CSB failed to bring the child to visit
him in prison. At the time, CSB claimed that it lacked the resources to transport A.M. six hours
to the prison. Notwithstanding the viability or advisability of taking an infant to a prison for
parent-child visits, Father did not take advantage of his own opportunities to visit A.M. while he
was out of prison. During those few months, Father attended two visits, no-showed for two, and
cancelled two more. Furthermore, Father does not seek custody for himself, but rather with
Mother or a relative. This argument lacks merit.
{¶12} Second, Father contends that the trial court failed to make reasonable efforts to
further explore a kinship placement of the child with Mother’s brother. Mother’s brother had
initially expressed interest in custody and was approved as a kinship placement. It is not clear,
however, that any further exploration was necessary or appropriate. This is so because there was
no evidence that Mother’s brother had any prior relationship with A.M. or that he sought to
develop one through visiting with A.M. during this case. Moreover, he did not file a motion for
legal custody, as required by R.C. 2151.353(A)(3), and he did not come to court to testify that he
desired custody. In addition, Mother’s brother told the caseworker that they already had six
children in their home and “their plates [were] full already[.]” After hearing about the agency’s
plan to place A.M. with her half-sibling, he told CSB that he was satisfied with that placement.
There is no evidence that additional time would have made a difference. Father has not
demonstrated error in the trial court’s failure to extend temporary custody to further investigate
placement with Mother’s brother. This argument is without merit as well.
{¶13} Finally, Father argues that CSB acted improperly in independently reducing the
length of Mother’s court ordered visitation. In January 2016, Mother was having multiple
overnight visits with A.M. each week. On January 20, 2016, CSB filed an amended case plan,
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which changed her visitation schedule to one hour per week. According to the testimony of
Mother’s caseworker, the agency had held a “staffing” meeting and decided not to allow the last
two weekend visits at Touchstone in January. Instead, shorter visits were offered at the visitation
center.
{¶14} Mother filed an objection to the amendment of the case plan. According to
Magistrate Esther Thomas, Mother “strenuously” objected to the amendments, argued that the
agency was in violation of court orders, and claimed that the case plan amendments
demonstrated bad faith and were not conducive to reunification. Magistrate Thomas indicated
that she agreed with Mother.
{¶15} On January 25, 2016, a hearing was held before Magistrate Katharine Bertsch. At
the hearing, all parties agreed that Mother had maintained her drug treatment, continued to have
negative drug tests, and was soon due to be successfully discharged from Touchstone. CSB
sought to explain the change in visitation by claiming that it was disturbed by the fact that
Mother violated rules by taking A.M. to visit Father in early December while on a pass from
Touchstone. The Magistrate disagreed, finding that CSB continued to facilitate the same visits
for Mother without a reduction after that event, and that “[o]nce Children Services determined
that the agency would be seeking permanent custody, however, the agency unilaterally reduced
mother’s visits.” Magistrate Bertsch further indicated that instead of filing a motion to modify
the existing visitation order, “Children Services filed a Notice of a Change in the Visitation plan,
essentially re-asserting its authority to disregard previous court orders, and implement its
proposed case plan amendment despite opposition by the mother.”
{¶16} Accordingly, Magistrate Bertsch reminded CSB “of the current court order, and
encouraged [the agency] to file any motions in support of [its] position[] so that all of the parties
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have sufficient notice and opportunity to be heard” if the agency sought a change of the existing
court order for visitation. The magistrate then specifically ordered that existing visitation orders
issued by the court shall remain in effect pending further court order. The magistrate ordered
Children Services to maintain the child’s visitation with Mother from Friday morning until
Monday morning each week, or as much of that visitation as is permitted by Mother’s treatment
center or supportive housing, pending further court order. Subsequently, Magistrate Thomas
found that the agency had not complied with Magistrate Bertsch’s January 25, 2016 order to
adhere to the existing court-ordered visitation.
{¶17} A magistrate held a hearing to determine visitation after Mother moved to her
new and less-structured residence on February 16, 2016. She ordered that Mother was to have
supervised visitation a minimum of twice per week in two-to-four hour increments in the
community or at her residence, commencing within seven business days. The record does not
indicate that Mother objected to this order by the Magistrate, thus barring her from further
assigning this as error on appeal.
{¶18} This Court has previously recognized that the procedures for the creation and
amendment of a case plan are statutorily mandated, and that the terms of the journalized case
plan bind not only the parents, but the state as well. In re S.D-M., 9th Dist. Summit Nos. 27148,
27149, 2014-Ohio-1501, ¶ 26. See also R.C. 2151.412(F)(1). Any party may propose a change
to a substantive part of the case plan, including the visitation rights of any party. In re S.D-M. at
¶ 27; R.C. 2151.412(F)(2). Proposed changes are to be filed with the court and notice must be
provided to all parties as well as to the child’s guardian ad litem by the end of the day following
filing. R.C. 2151.412(F)(2). Such proposed changes are subject to timely objection, requests for
hearings, and require the approval of the trial court before they may be implemented. R.C.
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2151.412(F)(2)(a). (“The agency shall not implement the proposed change unless it is approved
by the court.”) See also R.C. 2151.412(F)(3) (regarding the procedure for proposing changes in
the case of immediate danger.)
{¶19} Any action taken unilaterally by CSB in an attempt to alter Mother’s visitation
schedule was in violation of the court order. We are nevertheless unable to conclude that the
resultant change in visitation, apparently covering only one weekend by the time the order was
issued, was prejudicial to the overall custodial decision by the trial court in this case. Father’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN FINDING THAT IT IS IN THE MINOR
CHILD’S BEST INTEREST THAT SHE BE PLACED IN THE PERMANENT
CUSTODY OF SUMMIT COUNTY CHILDREN [SERVICES] AS THE
PROSECUTION FAILED TO MEET ITS BURDEN OF PROOF AND THE
TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶20} Through his third assignment of error, Father contends the finding of the trial
court that permanent custody is in the best interest of the child is against weight of the evidence.
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 within a reasonable time or should not
be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant
of permanent custody to the agency is in the best interest of the child, based on an analysis under
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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, 99 (1996).
{¶21} The trial court found that the first prong of the permanent custody test was
satisfied because A.M. had been in the temporary custody of CSB for at least 12 of the prior 22
months. Father does not contest that finding, but rather challenges the finding that permanent
custody is in the best interest of the child. When determining the child’s best interests under
R.C. 2151.414(D), the juvenile court must consider all relevant factors, including the interaction
and interrelationships of the child, her wishes, the custodial history of the child, and her need for
permanence in her life. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶
11. Although the trial court is also required to consider any relevant factors under R.C.
2151.414(E)(7) through (11), none of those factors applied to the facts of this case. See In re
R.G. at ¶ 11.
{¶22} The first of the best interest factors requires consideration of the relevant personal
interactions and interrelationships of the child. R.C. 2151.414(D)(1)(a).
{¶23} By her own testimony, Mother admitted to having multiple addictions since the
age of 13, including heroin and methamphetamines. She has struggled with her addictions since
then, but stated that she was strongly motivated by her daughter to achieve sobriety so that she
could secure custody of her. Mother joined the voluntary Stars program and then entered the
intensive inpatient Ramar program. After 45 days, she moved to Touchstone, a very structured
residential program, but which allowed her some freedom to have visitors and go shopping.
{¶24} Mother was also involved in mental health counseling at the Community Health
Center, video counseling groups at Touchstone, on-site AA meetings, and had a “recovery
coach.” Mother did well while residing in Touchstone and was able to have extended visits
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there, including overnight stays, with A.M. They both enjoyed the visits and were affectionate
with each other. The Touchstone coordinator observed them together and described Mother as
attentive and “a good mom.” The FRRC caseworker said Mother had great interaction with her
daughter. The guardian ad litem testified that he had no concerns with Mother’s interaction and
believed Mother loved her daughter. They played together well, and there appeared to be a bond
between them.
{¶25} However, when Mother was advanced to a less structured setting, she relapsed on
amphetamines within three months. Mother returned to the structure of Touchstone where she
again did well. However, when she moved to the less structured setting, she once again had a
problem and relapsed on cocaine within one month. In addition, Mother stopped attending
FRRC meetings, missed counseling sessions, stopped doing drug tests, and missed visits with her
daughter. Her caseworker testified that from March 24, 2016, until the hearing on July 27, 2016,
Mother had the opportunity for 25 visits and attended just six. The caseworker testified that
members of Mother’s service team tried to reach out to her during this time and tried to re-
engage her, but met with little success. Instead, her caseworker testified that Mother slipped into
a full relapse with binges on methamphetamines. Mother was discharged from her housing on
March 24, 2016, and was discharged from FRRC on May 19, 2016 for non-compliance. A social
worker from FRRC noted that one of Mother’s difficult areas was her self-reported lack of
family support.
{¶26} At the permanent custody hearing on July 27, 2016, Mother testified that in the
last three weeks, she came to realize how much support she had and how many people cared
about her. She also stated that she came to realize the need for treatment. Nevertheless, when
she was asked about her most recent drug use, Mother indicated that she had used
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methamphetamines and marijuana just one week prior to the hearing. When questioned about
her lack of attendance at visitations since her discharge from FRCC, Mother acknowledged that
it was because she was in “active addiction” and explained: “When you’re out there in your
addiction, you forget about everything. You don’t care. You don’t. You forget about
everything that you need to do. It’s like you’re lost and confused and that’s what I was. I was
lost and confused.”
{¶27} Mother did well when she resided in a very structured setting, but had been
unable to maintain sobriety in a more open setting for any significant period of time. Mother’s
addiction and poor choices thus prevented her from being able to parent her child on a long-term
basis. She did not demonstrate the sobriety that would have been needed to support awarding
custody of her daughter to her, a child who at two years of age would be completely dependent
on Mother and, if in active addiction, would place A.M. at risk of harm. Although Mother truly
loved her child, after multiple failed treatment attempts and multiple relapses, Mother did not
demonstrate that she was able to live a substance free lifestyle.
{¶28} In addition to Mother’s substance abuse issues, she only maintained housing for
three weeks, a length of time found by the trial court to be insufficient to establish stable housing
for a two-year old child. Mother’s source of income was bartending two nights a week and
doing odd jobs. The trial court expressed concern as to whether Mother had the financial
resources to care for A.M. The court also expressed concern that working in a bar might serve as
a trigger to Mother’s addiction.
{¶29} The facts in the record before this Court support the trial court finding that Mother
was unable to meet her own needs or those of her child. Furthermore, the case was close to
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reaching the two-year point and there was no additional time that could be offered to Mother to
demonstrate that she could remain clean and sober.
{¶30} A.M. has no real relationship with Father. Father was incarcerated for A.M.’s
entire life except for a few months following his judicial release and until he was incarcerated
again. At the time of the permanent custody hearing, he had nearly a year left on his sentence.
During Father’s release from prison, he attended only two visits with his daughter although
additional visits were scheduled.
{¶31} Father was also offered case planning services during his release from prison, but
Father’s caseworker at Oriana House testified that Father had “an overall lack of motivation” to
be in the substance abuse program and tested positive for marijuana and amphetamines during
that time. Father has not demonstrated that he can provide an appropriate home for A.M.
{¶32} There are no relatives that are able to assume custody of A.M. Only paternal
grandmother visited A.M., and she is not able to assume legal custody. Over the course of the
two years of this case, no other relative made any effort to establish a relationship with A.M.
Nor has any relative filed a motion seeking legal custody, as required by R.C. 2151.353(A)(3), or
even come to court to express a desire for custody.
{¶33} A.M. is closely bonded to her foster parents and the other children in that home,
including her half-sibling who has been adopted into the family. Her foster parents hope to
adopt A.M. also if permanent custody is granted. The caseworker observed A.M. during her
monthly visits, and described her as very active and not yet verbal. She is comfortable in the
foster home, with the foster parents, and with the other children in the home. The guardian ad
litem said that her interaction in the foster home was “wonderful.” He had no concerns with any
interactions in that home.
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{¶34} The guardian ad litem believes that an award of permanent custody to CSB is in
A.M.’s best interest. A.M. is just shy of two years old and is not of suitable age and discretion to
express her own wishes as to custody. See R.C. 2151.414(D)(1)(b).
{¶35} The guardian ad litem testified that he has had the same concerns for Mother
throughout this case: sobriety, decision making, mental health, basic needs, stable housing, and
income to meet basic needs. He also served as the guardian ad litem on the case involving
Mother’s older child, and he reported that the same issues that existed in the prior case have
continued into this one.
{¶36} The guardian ad litem explained that Mother did well in very structured and
restrictive settings. She was able to have extended and overnight visits there, but when she
transitioned to a less structured setting and back to the community, she resumed substance abuse
and made questionable decisions. He stated that Mother did not resolve the concerns that
brought A.M. into custody. He was also concerned about her mental health (diagnosis of bipolar
disorder) because that seems to have contributed to the substance abuse decisions she made.
{¶37} While he believes the best interest of the child lies in granting permanent custody
to CSB, based on the testimony and his observations over the last two years, he also commended
Mother for recognizing that she needed help and for how well she did in treatment. He hopes
she continues to do well because she would have to take care of herself before she could take
care of anyone else.
{¶38} The guardian ad litem explained that Father spent the majority of the case
incarcerated and has a significant history of substance abuse. During the short period he was
released from prison, he tested positive for amphetamines and marijuana and attended only two
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visits with his daughter. He has several mental health diagnoses (paranoid schizophrenia,
anxiety, and PTSD) but has not engaged in treatment services.
{¶39} The guardian ad litem noted that there have been nearly two years in which
relatives could have come forward and sought custody, but none came forward to establish a
relationship with A.M., and he believes the child would be traumatized to be removed from the
only home she has ever known.
{¶40} The third of the best interest factors focuses on the custodial history of the child.
R.C. 2151.414(D)(1)(c). Upon her release from the hospital following her birth, A.M. was
placed in the emergency temporary custody of the agency. She has remained in the temporary
custody of the agency and was placed with the same foster family that had adopted her older
half-brother. She remained in the care of the same foster family for the remainder of the
proceedings and for twelve or more months of a consecutive 22-month period. See id.
{¶41} As to the fourth of the best interest factors, there was evidence before the trial
court that the child was in need of a legally secure placement. See R.C. 2151.414(D)(1)(d).
Neither parent was able to provide a safe, stable home for the child. Moreover, there were no
suitable friends or relatives willing to provide for A.M. Only the paternal grandmother had come
forward to attend visits and develop a relationship with the child, but she was not in a position to
assume custody of the child. Father had hoped that Mother’s brother might be granted legal
custody, but he had no relationship with A.M., did not file a motion for legal custody, and did
not appear at the hearing to testify. Furthermore, he told the caseworker that “they had their
plates full already with six children” in their home and that he was fine with A.M. being placed
in the same foster home as her half-sibling. CSB contacted several other relatives. A number of
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them had disqualifying situations and none pursued custody by filing a motion for legal custody
or coming to court to testify.
{¶42} The record does not demonstrate that the trial court clearly lost its way and
created a manifest miscarriage of justice in finding that it was in the best interest of A.M. to be
placed in the permanent custody of CSB. See Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-
Ohio-2179, ¶ 20. Accordingly, Father’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY OF
THE MINOR CHILD TO SUMMIT COUNTY CHILDREN SERVICES AS
MOTHER HAD SUBSTANTIALLY COMPLETED HER CASE PLAN.
{¶43} Father contends that the trial court erred in granting permanent custody of A.M. to
CSB because Mother substantially completed her case plan requirements.
{¶44} While parents’ progress is measured in part by completion of their case plan
goals, the case plan is not the only measure by which a court determines whether to grant a
motion for permanent custody. This court has previously emphasized that substantial compliance
with a case plan, without more, does not entitle a parent to custody. In re M.Z., 9th Dist. Lorain
No. 11CA010104, 2012-Ohio-3194, ¶ 19.
{¶45} Moreover, the evidence before the trial court demonstrates that Mother had not
substantially completed her case plan and had not remedied the problems that caused A.M. to be
placed outside of her custody. Mother’s case plan addressed substance abuse, mental health, and
the basic needs of the child. Mother did well in addressing substance abuse while she resided in
a structured setting, but was unable to maintain a sustained period of sobriety while residing in a
more open setting. The guardian ad litem expressed concern with Mother’s efforts in addressing
her mental health because he believed that contributed to the poor decisions she made regarding
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substance abuse. According to Mother’s stipulation to the facts in the complaint, Mother
admitted that she did not take her bipolar medication for two years and attempted suicide three or
four times. Additionally, Mother did not demonstrate an ability to provide for her own and her
child’s basic needs. She began sharing an apartment with another woman just three weeks prior
to the permanent custody hearing, and planned to support herself by working part-time as a
bartender and doing odd jobs, such as babysitting and “car work.” The trial court expressed
concern that working as a bartender might trigger substance abuse for Mother.
{¶46} A.M. is only two years old and would be completely dependent upon Mother for
her care, safety, and security. Concerns remained regarding Mother’s ability to meet her basic
needs. Mother failed to demonstrate that she remedied the problems that caused A.M. to be
removed from her and that she can provide an adequate permanent home for the child. Father’s
fourth assignment of error is without merit.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
FATHER’S RIGHTS WHEN TESTIMONY WAS PERMITTED OVER
OBJECTIONS.
{¶47} Father claims that the trial court erred in permitting testimony regarding Mother’s
case involving her older child, S.H., over objection.
{¶48} During consideration of preliminary matters at the outset of the permanent
custody hearing in this case, the court considered the admission of multiple exhibits. The court
denied CSB’s request to admit a certified copy of the court record in S.H.’s case, finding it to be
irrelevant to the present case since that had been a voluntary surrender.
{¶49} Subsequently, CSB called as a witness, the individual who served as the
caseworker in Mother’s prior case and for the first few weeks of the present case. Mother’s
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attorney entered a general objection to bar the witness from testifying regarding the prior case,
claiming it would be irrelevant. CSB responded that, although the prior termination was
voluntary, it was important to show Mother’s history of substance abuse. The court ruled that it
would permit the caseworker to testify as to any treatment that was similar, and would consider
the caseworker’s testimony for the purpose of evaluating the progress that Mother had made or
failed to make as it relates to chemical dependency, but not about legal outcomes in the prior
case.
{¶50} Inter alia, the witness testified that she developed the initial case plan in the
present case and that it included the same objectives as did the case plan in the prior case:
substance abuse, mental health services, and basic needs. On appeal, Father claims the witness’s
statement that “[Mother] was not able to get [S.H.] back due to non-compliance” should not have
been permitted because it unfairly prejudiced Mother’s chance to gain legal custody of A.M.
{¶51} Upon review of the record, we observe that the parents had stipulated to the facts
in the complaint at the time of the adjudicatory hearing. In so doing, they conceded that S.H.
was adjudicated dependent and placed in CSB custody because Mother was unsuccessful in
addressing her substance abuse and mental health objectives, and also that during that case, she
abused pills and was discharged from the Community Health Center for non-compliance. The
parents also agreed that after permanent custody was granted in the prior case, CSB advised
Mother to address substance abuse in order to be able to parent her expected child, A.M., but
Mother did not do so and she was not currently in treatment.
{¶52} To the extent that the parents’ stipulations may not fully address Father’s
argument on appeal, we nevertheless conclude that Father has not demonstrated prejudice.
Because this matter was tried to the court, there is a presumption that the trial judge considered
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only the relevant, material, and admissible evidence in arriving at the judgment unless the record
affirmatively demonstrates otherwise. In re D.B., 9th Dist. Medina Nos. 03CA0015-M,
03CA0018-M, 2003-Ohio-4526, ¶ 9, citing State v. Richey, 64 Ohio St. 3d 353, 357-358 (1992).
Father has neither claimed nor demonstrated that the trial court relied on inadmissible evidence
in reaching its decision. Accordingly, Father has not demonstrated prejudice. Father’s fifth
assignment of error is overruled.
III.
{¶53} Father’s five assignments of error are overruled. Mother’s appeal is dismissed
due to her failure to file an appellate brief. See App.R. 18(C). 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.
19
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
CONCURS.
SCHAFER, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶54} I agree with the majority that the trial court correctly terminated each of the
parent’s rights and granted permanent custody to CSB.
{¶55} As reported by the majority, A.M. was in the continuous temporary custody of
CSB for well in excess of 12 of the 22 prior months and efforts to reunify the family were
completely unsuccessful. Mother had long-term substance abuse concerns that she was unable to
remedy despite substantial efforts and Father, who also had substance abuse issues, had had no
prior relationship with the child and was incarcerated throughout most of the trial court
proceedings and anticipated for a year afterwards. Significantly, although Mother filed a notice
of appeal, she did not pursue her appeal by filing an appellate brief, thus resulting in dismissal of
her appeal.
{¶56} Father did not seek custody for himself, but rather supported the now-dismissed
claim of Mother or that of non-party relatives. Upon these facts, absent the constraints of local
precedent, e.g. In re A.S., 9th Dist. Summit No. 23456, 2007-Ohio-2195, ¶ 8-10, I would find
that Father cannot assert error on Mother’s behalf in an attempt to retain his residual parental
rights, as Mother no longer has rights to which his attach. See In re S.G.D.F., 10th Dist. Franklin
20
Nos. 16AP-57, 16AP-123, 2016-Ohio-7134, ¶ 14 (“An appellant cannot raise issues on another’s
behalf, especially when that party could have appealed the issues appellant posits.”) I would
agree, however, that Father may assert error on behalf of a proposed non-party legal custodian,
as he would retain his residual parental rights to the child in that situation
{¶57} Accordingly, I concur in the result of the majority.
APPEARANCES:
DANIEL R. BACHE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.