In re X.N. , 2021 Ohio 3633 ( 2021 )

[Cite as In re X.N., 2021-Ohio-3633.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
IN RE: X.N. C.A. No. 21CA0016-M
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
CASE No. 2019 06 DE 0031
DECISION AND JOURNAL ENTRY
Dated: October 12, 2021
TEODOSIO, Presiding Judge.
{¶1} Appellant, S.N. (“Mother”) appeals from a judgment of the Medina County Court
of Common Pleas, Juvenile Division, that terminated her parental rights to her minor child and
placed the child in the permanent custody of Medina County Job and Family Services
(“MCJFS”). This Court affirms.
I.
{¶2} Mother is the biological mother of X.N., born June 11, 2019. Mother has lost
custody of three other children. Two of them were placed in the legal custody of their respective
paternal grandparents in 2016 and 2017, and the third child was placed in the permanent custody
of MCJFS in 2017. The father of X.N. voluntarily relinquished his parental rights during the
permanent custody hearing and did not appeal from the judgment.
{¶3} On June 14, 2019, MCJFS filed a complaint, alleging that X.N. was a dependent
child because Mother has a low level of cognitive functioning; lacked stable income and
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housing; had a history of associating with inappropriate men including registered sex offenders;
and, for the same reasons, had her parental rights involuntarily terminated with respect to a
sibling of the child.
{¶4} X.N. was later adjudicated a dependent child and was placed in the temporary
custody of MCJFS. The court-ordered case plan focused primarily on Mother’s mental health
and her history of making choices that continually exposed her and her children to a risk of harm.
To that end, Mother was required to complete a new parenting/mental health assessment and
follow all treatment recommendations to stabilize her mental health and demonstrate that she
could provide X.N. with a safe and stable environment. On December 19, 2019, after concerns
arose that Mother was abusing alcohol to cope with her mood swings, MCJFS added a substance
abuse component to the case plan.
{¶5} During the following months, Mother made minimal progress on the reunification
goals of the case plan. She obtained another parenting assessment with the same licensed
psychologist who evaluated her during a prior juvenile case in 2015. The psychologist
diagnosed her with bipolar disorder, dependent personality disorder, post-traumatic stress
disorder, and an intellectual disability that had been exacerbated by a recent brain injury. Mother
eventually completed parenting classes and engaged in some counseling, but she did not follow
through with medication management to control her mood swings, did not pursue treatment with
a neurologist for her brain injury, and continued to associate with and rely on inappropriate
people who posed a risk to her and her children. Mother reported that she often chose to
associate with people of questionable character such as drug abusers, sex offenders, and people
who physically and emotionally abuse her because she does not like to be alone.
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{¶6} The psychologist who evaluated Mother emphasized that Mother did not learn
how to form healthy relationships as a child and that she has a long history of exercising poor
choices that jeopardized the safety of Mother and her children. She expressed particular concern
that Mother had not learned from her past mistakes, which led to her losing custody of three
other children. The psychologist opined that Mother would need a lot of help to safely raise a
child.
{¶7} Mother lacked a support system of suitable family or friends, however. Mother
continued to rely on her own biological mother (“Grandmother”) as her primary source of family
support. Grandmother had lost custody of Mother many years ago because of her own problems
with domestic violence in her romantic relationships, drug abuse, and physically and emotionally
abusing Mother. Moreover, while living with Grandmother, Mother was sexually assaulted by a
man with whom Grandmother was romantically involved. After being permanently removed
from Grandmother’s custody, Mother lived in 40 different foster homes until she aged out of the
system.
{¶8} More than a decade later, Grandmother continued to struggle with drug abuse and
domestic violence and was still romantically involved with the man who sexually assaulted
Mother. Although Mother openly admitted to others that Grandmother was not a positive source
of support for her, she continued to move back in with Grandmother each time her relationship
with a romantic partner ended.
{¶9} Mother’s only other source of support was several male friends with criminal
backgrounds, many of whom are convicted sex offenders. Mother explained to the caseworker
that she chose to associate with men with criminal backgrounds “because people that have a
[criminal] background understand me.” Mother further defended her association with these men
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by explaining that some of their convictions had not involved children and/or that they had never
been around her children. After one male friend was arrested on child pornography charges
while Mother was at his home, Mother told the caseworker that, although he had asked her to
send him pictures of her children, she never did. Mother further explained that if X.N. were
returned to her custody, she would no longer associate with these people. Throughout this case,
however, Mother did not develop relationships or a support system with any other people.
{¶10} On March 12, 2020, MCJFS moved for permanent custody of X.N. It alleged
that the child could not or should not be returned to either parent’s custody pursuant to R.C.
2151.414(B)(1)(a), based on several alternative grounds under R.C. 2151.414(E), and that
permanent custody was in the best interest of X.N. Following a hearing, the trial court
terminated Mother’s parental rights and placed X.N. in the permanent custody of MCJFS.
Mother appeals and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
IT WAS PLAIN ERROR TO PERMIT COUNSEL FOR THE FOSTER
PARENTS TO CROSS-EXAMINE WITNESSES, AND FOR THE TRIAL
COURT TO RELY ON ANY TESTIMONY RESULTING FROM THESE
CROSS-EXAMINATIONS, WHEN THE FOSTER PARENTS WERE NOT
JOINED AS PARTIES TO THE CASE.
{¶11} Mother’s first assignment of error is that the trial court erred by allowing the
foster parents to cross-examine two witnesses who testified at the hearing: Mother and the
psychologist who performed Mother’s psychological evaluation. Mother recognizes that she did
not raise any objection at the time the foster parents cross-examined these witnesses and,
therefore, has forfeited all but plain error.
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{¶12} “This Court has not determined to date whether the criminal or civil plain error
standard applies in cases involving dependent, neglected, and/or abused children.” In re Z.S., 9th
Dist. Summit No. 29887, 2021-Ohio-2022, ¶ 9, citing In re K.J., 9th Dist. Summit No. 29149,
2019-Ohio-123, ¶ 11. Under either standard, however, Mother would be required to demonstrate
a significant amount of prejudice that either amounted to a “manifest miscarriage of justice” or
“challeng[ed] the legitimacy of the underlying judicial process itself.” In re Z.S. at ¶ 8, quoting
State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 57, and Goldfuss v. Davidson, 79 Ohio
St.3d 116 (1997), syllabus.
{¶13} Even if the trial court erred in allowing counsel for the foster parents to cross-
examine these two witnesses, Mother has failed to demonstrate that this evidence prejudiced her
case in any way, much less under the heightened standard of plain error. The cross-examination
conducted by the foster parents focused primarily on the parenting evaluation conducted by the
psychologist and on Mother’s self-reported history of becoming involved with inappropriate
men, including several sex offenders and men who abused her. Evidence about Mother’s history
of inappropriate relationships and other parenting problems was already before the trial court
through the testimony of several witnesses as well as exhibits admitted from the prior juvenile
cases involving Mother’s older children and the two lengthy parenting evaluations conducted in
2015 and 2020. Notably, Mother fails to point to any part of the foster parents’ cross-
examination testimony that was not already before the court through other evidence admitted at
the hearing. Consequently, Mother has failed to demonstrate plain error and her first assignment
of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT’S DECISION TO PLACE THE CHILD IN THE
PERMANENT CUSTODY OF [MCJFS] WAS AGAINST THE MANIFEST
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WEIGHT OF THE EVIDENCE BECAUSE IT FAILED TO CONSIDER
RELEVANT FACTS IN ITS ANALYSIS OF THE BEST INTEREST OF THE
CHILD, AND MADE INACCURATE FINDINGS THAT WERE NOT
SUPPORTED BY THE TESTIMONY AT THE PERMANENT CUSTODY
HEARING.
{¶14} Through her second assignment of error, Mother challenges the trial court’s
permanent custody decision on the merits. Before a juvenile court may terminate parental rights
and award permanent custody of a child to a proper moving agency, it must find clear and
convincing evidence of both prongs of the permanent custody test: (1) that the child is
abandoned; orphaned; has been in the temporary custody of the agency for at least 12 months of
a consecutive 22-month period; the child or another child of the same parent has been
adjudicated abused, neglected, or dependent three times; or that the child cannot be placed with
either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of permanent
custody to the agency is in the best interest of the child, based on an analysis under R.C.
2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio
St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will “produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established.” (Internal
quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶15} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
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evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶16} The trial court found that the first prong of the permanent custody test was
satisfied because X.N. could not be placed with either parent within a reasonable period of time
or should not be placed with the parents under R.C. 2151.414(B)(1)(a), for five alternative
grounds under R.C. 2151.414(E). Specifically, the trial court found that there was clear and
convincing evidence to demonstrate that: Mother “failed continuously and repeatedly to
substantially remedy the conditions causing the child to be placed outside the child’s home[;]”
Mother “demonstrated a lack of commitment toward the child by failing to regularly support,
visit, or communicate with the child when able to do so, or by other actions showing an
unwillingness to provide an adequate permanent home for the child[;]” Mother had her “parental
rights involuntarily terminated with respect to a sibling of the child” and “failed to provide clear
and convincing evidence to prove that, notwithstanding the prior termination, the parent can
provide a legally secure permanent placement and adequate care for the health, welfare, and
safety of the child[;]” Mother was “unwilling to provide food, clothing, shelter, and other basic
necessities for the child[;]” and “[a]ny other factor the court considers relevant.” R.C.
2151.414(E)(1), (4), (11), (14), and (16). Mother does not dispute any of those findings.
{¶17} Mother instead focuses her argument on the trial court’s finding that permanent
custody was in the best interest of X.N. She does not challenge the trial court’s findings on the
specific best interest factors, however. Instead, she disputes several of the trial court’s factual
findings that pertained directly to its first-prong findings, such as the length of time that she was
employed at a certain job, whether she was about to lose her housing, whether she resided with
certain people or simply associated with them, and her choices for finding transportation.
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Because Mother has challenged only the best interest finding, this Court will confine its review
accordingly.
{¶18} When determining a child’s best interest, the trial court must consider all relevant
factors, including: the interaction and interrelationships of the child, the wishes of the child, the
child’s custodial history; the child’s need for permanence and whether such a placement can be
achieved without a grant of permanent custody; and whether any of the factors set forth in R.C.
2151.414(E)(7)-(11) apply to this case. R.C. 2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist.
Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11.
{¶19} Throughout this case, Mother’s interaction with X.N. was limited to supervised
visitation because Mother had not complied with the reunification requirements of the case plan.
Notably, Mother did not engage in psychiatric services to manage the symptoms of her mental
illness, but instead self-medicated with alcohol and once tested positive for methamphetamine.
Although Mother denied using methamphetamine, she admitted that she used alcohol to stabilize
her moods.
{¶20} Mother did not attend visits consistently, claiming that she had trouble finding
transportation to the visits. Although MCJFS would provide Mother with passes to use public
transportation, Mother rarely used public transportation. Instead, she relied on men with whom
the agency had advised her to stop associating because they were a danger to Mother and her
children.
{¶21} In the home of the foster parents, on the other hand, X.N. had assimilated into
their safe and stable family. The foster parents had adopted X.N.’s five-year-old half sibling and
were also interested in adopting X.N. A close bond had developed between X.N., her sibling,
and the rest of the foster family.
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{¶22} Mother faults the foster parents and X.N.’s daycare center for referring to X.N. by
another name. The foster mother explained at the hearing that she had believed that she was
supposed to protect X.N. and conceal her identity from the public. After being informed by the
agency that they should refer to X.N. by her given name, the foster parents began doing so.
{¶23} Because X.N. was less than two years old at the time of the hearing, she was too
young to express her wishes about where she wanted to live. The guardian ad litem opined that
permanent custody was in the best interest of X.N. Although he recognized that Mother cared
about X.N., he did not believe that she had gained the necessary insight to provide the child with
a safe and stable home.
{¶24} X.N. never resided in Mother’s custody. Since shortly after her birth, X.N. has
lived in the temporary custody of MCJFS, placed with the same foster family. She needed a
legally secure permanent placement. Neither parent was able to provide her with a suitable home
at that time and the agency had been unable to find any suitable family or friends who could do
so.
{¶25} Finally, the trial court was required to consider that Mother had her parental rights
terminated as to X.N.’s half sibling in 2017. R.C. 2151.414(D)(1)(e); R.C. 2151.414(E)(11).
That child was also removed from Mother’s custody as an infant and Mother’s parenting
problems at that time were similar to her current problems: she lacked stable housing and income
and the ability to meet the child’s basic needs; she had untreated mental health problems; and she
lacked the insight to avoid exposing herself and her children to inappropriate people including
sexual predators, abusive men, and Grandmother.
{¶26} As originally enacted, a prior involuntary termination of parental rights to a
sibling of the child demonstrated the parent’s unfitness under the first prong of the permanent
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custody test. In re G.L.S., 9th Dist. Summit Nos. 28874 and 28893, 2018-Ohio-1606, ¶ 19,
citing former R.C. 2151.414. “As amended effective January 9, 2009, however, Section
2151.414(E)(11) allows a parent to rebut the presumption that [she is] unfit by presenting ‘clear
and convincing evidence to prove that, notwithstanding the prior termination, [she] can provide a
legally secure permanent placement and adequate care for the health, welfare, and safety of the
child.’” Id., citing R.C. 2151.414(E)(11). Mother failed to present evidence to rebut the
presumption of her continued unfitness to parent a child. In fact, the evidence before the trial
court demonstrated that Mother continued to struggle with the same problems that led to the
involuntary termination of her parental rights several years earlier.
{¶27} Although Mother engaged in some counseling, she had not gained insight into
understanding the risk that some people pose to her and her family. Mother continued to
associate almost exclusively with Grandmother and questionable men, all of whom exposed her
to risks of abusive and/or other criminal behavior. During this case, Mother allowed men she
barely knew to stay at her apartment, in violation of the lease. She became involved in a
domestic violence incident with one of these men because she did not know his “full story.”
That incident led to proceedings to evict Mother from her subsidized housing.
{¶28} Mother was sexually assaulted by another man whom she had just met. She did
not report the incident to the police because she did not want MCJFS to find out what had
happened. In hindsight, she realized that she had made a bad choice. Mother continued to tell
the caseworker and others that she would start associating with people who did not pose a risk to
her or her children, but she had not demonstrated that she had the ability or willingness to do so.
In fact, after reporting to the agency that she knew she needed to stop relying on Grandmother
for support, Mother testified at the hearing that Grandmother had changed and she did not
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believe that she posed a risk to X.N. She further testified that Grandmother often babysat
another child without any problems.
{¶29} Given the evidence presented at the permanent custody hearing, Mother has failed
to demonstrate that the trial court lost its way in concluding that permanent custody was in the
best interest of X.N. Mother’s second assignment of error is overruled.
III.
{¶30} Mother’s assignments of error are overruled. The judgment of the Medina
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 Medina, 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.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
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CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
DANA H. GARDNER, Attorney at Law, for Appellant.
KARA MARLIN, Attorney at Law, for Appellee.
DAVID GEDROCK, Guardian ad Litem.