In re C.H. ( 2021 )

[Cite as In re C.H., 2021-Ohio-3992.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: C.H. C.A. No. 29995
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 19 07 0616
DECISION AND JOURNAL ENTRY
Dated: November 10, 2021
CALLAHAN, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated her parental rights and placed her child in the permanent
custody of Appellee, Summit County Children Services Board (“CSB” or “the agency”). This
Court reverses and remands.
I.
{¶2} Mother and Father are the biological parents of C.H. (d.o.b. 9/13/16). They are
also the parents of an infant born during the proceedings below, although that child is not
involved in this appeal. Father has multiple other children, including B.H. (d.o.b. 4/11/09) and
J.H. (d.o.b. 2/2/14) who are not subjects of this appeal but who were living in the same
household with C.H. when the three children were removed by CSB. Their circumstances are
intertwined with those of C.H., and their cases were consolidated with C.H.’s in the juvenile
court.
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{¶3} Although the record is imprecise as to timing and circumstances, there is no
dispute that C.H., B.H., and J.H. had been formally placed in the legal custody of their paternal
grandmother (“Grandmother”) prior to CSB’s involvement in this case. In June 2019, the agency
received a referral regarding the well-being of the children in Grandmother’s home, where
Mother and Father had also been living. When the agency caseworker visited the home to
investigate, Mother and Father had moved out because Grandmother had obtained a protection
order against them. Grandmother could not provide the caseworker with the parents’ new
address(es).
{¶4} Mother and Father had been using methamphetamine in the home and engaging in
acts of domestic violence against Grandmother. Father had multiple pending warrants for his
arrest relating to drug charges in three cases. The home was cluttered, the children were dirty,
and Grandmother admitted to feeling overwhelmed by caring for three children with special
needs. She also admitted that she was using methamphetamine just to be able to get things done
around the house. Grandmother had failed to take C.H., who has Down Syndrome, to Summit
DD, which discontinued the child’s services for lack of participation. Based on the conditions in
the legal custodian’s home, on July 23, 2019, CSB removed the children and filed complaints
alleging that each was an abused (endangered), neglected, and dependent child.
{¶5} Although the caseworker did not have a current address for Mother, she left a
voicemail message on Mother’s last known phone number regarding the shelter care hearing.
When the caseworker was able to speak with Mother by phone in July 2019, after C.H. came into
the agency’s custody, she tried to schedule a home visit. Mother, however, did not provide an
address to the caseworker because she claimed to be “in between housing.”
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{¶6} The agency served Mother with the complaint and notice of the adjudicatory
hearing by posting based on an affidavit averring that Mother’s residence could not be
ascertained with reasonable diligence. The affidavit recited the reasonable efforts used to
determine Mother’s residence, checking multiple data bases including the Statewide Automated
Child Welfare Information System, Accurint, the Ohio Department of Corrections, Vinelink, the
Summit County Criminal Justice Information System, Summit County Child Support
Enforcement Agency, and the Bureau of Prisons. Only Accurint provided an address for Mother
at a home on Ivanhoe in Kent, Ohio.
{¶7} Because that address referenced a time before Mother was known subsequently to
be living with Grandmother, the caseworker attempted to verify the Ivanhoe address as Mother’s
current address. Mother was not at that home when the caseworker visited. When the
caseworker spoke with Mother on August 5, 2019, Mother reported that she was living with
“Aunt Shelly,” but she did not provide an address or other information for Aunt Shelly. Mother
disputed this and testified that she gave the caseworker her aunt’s address in Akron.
{¶8} The caseworker was able to schedule two later dates in August 2019, to meet
Mother at the Ivanhoe address for a home visit. Mother canceled both visits, and the caseworker
was unable to verify that Mother was actually residing at the Ivanhoe address at that time. In
fact, Mother testified on March 4, 2021, that she had not been living at the Ivanhoe address when
the case began and that she had only been living there “[a] little over a year.”
{¶9} CSB filed the original case plan in early August 2019, noting that Mother was
homeless based on Mother’s assertion that she was in between homes. The case plan goal was
reunification with either Grandmother, as the child’s legal custodian, or with the parents.
Because the caseworker had been unable to meet with Mother to discuss the agency’s concerns,
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Mother’s sole initial case plan objective was that she contact the caseworker if she desired to
assume a parenting role and that she cooperate with the agency and engage in necessary services
to address any identified issues. Mother did not participate in creating or signing the case plan.
{¶10} Mother and Father did not appear for adjudication. Grandmother stipulated to the
allegations in the complaint, and the agency presented evidence to establish its claims in the
parents’ absence and lack of stipulation. The magistrate found that C.H. was an abused
(endangered), neglected, and dependent child, and that CSB had used reasonable efforts to
prevent the child’s continued removal from his home.
{¶11} Mother and Father failed to appear at the dispositional hearing. Again,
Grandmother waived her hearing rights, and the agency presented evidence in the parents’
absence. The magistrate placed the child in the temporary custody of CSB, adopted the agency’s
case plan as an order, found that CSB had used reasonable efforts to prevent the child’s
continued removal from his home, granted Grandmother two-hour weekly supervised visitation,
and ordered that Mother and Father should request an order of visitation from the court should
they so desire.
{¶12} Neither parent attended the next three review hearings. Father had been
incarcerated shortly after the dispositional hearing. At the review hearing in May 2020,
Grandmother informed the court that Mother was living in Portage County and had recently
given birth to an infant. At a later hearing, the caseworker testified that, after speaking with
Mother during the first few weeks of the case, Mother did not contact her again until April 2020,
when Mother was in active labor at the hospital. The caseworker testified that she told Mother to
call her after she had returned home after giving birth so that they could schedule a home visit.
Mother, however, did not contact the caseworker at that time. The caseworker later learned that
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Grandmother had been in contact with Mother throughout the case but failed to notify the
caseworker.
{¶13} Eleven months into the case, CSB filed a motion for a judicial determination of
reasonable efforts to finalize a permanency plan and a motion for permanent custody regarding
C.H., B.H., and J.H. As its first-prong ground, the agency alleged that the children could not be
returned to their parents within a reasonable time or should not be returned based on the parents’
failures to remedy the concerns underlying the children’s removals and, alternatively, the
parents’ demonstrated lack of commitment towards the children. CSB alleged that it was not in
the children’s best interest to be placed in the legal custody of any parent or Grandmother.
{¶14} Approximately a month later, Father wrote a letter from prison to the juvenile
court, asserting that he was aware of the upcoming sunset hearing, requesting counsel, and
referring to Mother as a good co-parent. The juvenile court appointed counsel for Father.
Mother appeared at the sunset hearing, the first hearing she had attended during the year-long
case. The magistrate issued a decision finding the following:
[The caseworker] had nominal contact with Mother at the beginning of the case.
Mother has not participated in Court proceedings until today. Mother advised that
she had not been to Court because no one would tell her the Court date. Mother
did not contact the Court to obtain dates. Mother was sent all orders and
decisions from prior hearings. The Court strongly urged Mother to appear at the
Court an[d] apply for Counsel.
[The caseworker] would like to meet with Mother and discuss what will be added
on the case plan for her.
The magistrate also found that the agency had used reasonable efforts, including “attempted
contact with Mother,” to finalize a permanency plan.
{¶15} CSB filed an amended case plan, adding an objective for Mother, requiring that
she obtain a drug and alcohol assessment, follow all recommendations, and submit to random
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drug screens. The case plan indicated that Mother had worked with the agency to jointly develop
the case plan objective and that Mother agreed to it.
{¶16} Mother filed a request for counsel, listing the Ivanhoe address as her residence.
CSB instructed the clerk of court to serve Mother by certified mail at the Ivanhoe address with
the motion and summons regarding the permanent custody hearing. The juvenile court appointed
counsel to represent Mother.
{¶17} The permanent custody hearing began on November 19, 2020. Mother was
present with her attorney. The mother of B.H. and J.H. appeared for the first time in the case and
asserted that she wanted to participate in the proceedings and obtain appointed counsel. The
juvenile court asserted that it would appoint an attorney for that mother. It then recessed the
proceedings until March 3, 2021, to give counsel for the mother of B.H. and J.H. time to review
the recording of that day’s hearing and prepare for further proceedings.
{¶18} When the permanent custody hearing resumed on March 3, 2021, Mother’s
attorney orally moved for a six-month extension of temporary custody; or, alternatively, for legal
custody. It was not clear whether she was seeking legal custody of only C.H., or of B.H. and
J.H. as well.
{¶19} The hearing continued for a third day on March 4, 2021. Mother’s attorney cross-
examined the agency caseworker regarding the caseworker’s contacts with Mother throughout
the case, as well as the efforts the agency made to determine Mother’s residence.
{¶20} CSB rested its case and Mother presented her case in chief. Mother testified and
admitted that she had become aware of the case involving C.H. sometime in August 2019. She
claimed, however, that the caseworker would not tell her about any upcoming hearing dates
throughout the case because the agency was only concerned with reunifying the children with
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Grandmother. Mother testified that she reached out to CSB “[m]ultiple, multiple, multiple
times[,]” and “[a]t least a good 50 times to [the caseworker].” Mother claimed that on the rare
occasions that the caseworker returned her calls, the caseworker asserted that she was under no
obligation to do so because Mother was “not a priority.”
{¶21} The permanent custody hearing concluded on April 22, 2021. Mother reopened
her case to testify that the Portage County child welfare agency had closed its recent case and
returned Mother’s infant to her custody. She reiterated her desire for legal custody, but indicated
that she would also support an award of legal custody of C.H. to the maternal grandmother of
B.H. and J.H. After the guardian ad litem presented her report and the caseworker provided a
final update since the prior hearing, Mother again testified in rebuttal. She disputed that she had
failed to appear for a scheduled visitation. Instead, she testified that no one at CSB would allow
her to enter the gate on the agency’s premises despite her 20-30 calls to the caseworker and her
supervisor. Mother testified that she also called Grandmother who was visiting the children at
the time. Grandmother allegedly told Mother that she was not allowed to visit.
{¶22} At the conclusion of the permanent custody hearing, the juvenile court issued a
judgment terminating Mother’s and Father’s parental rights and placing C.H. in the permanent
custody of CSB. The juvenile court found that C.H. could not or should not be returned to either
parent’s custody based on their failures to remedy the conditions that gave rise to his removal, as
well as their lack of commitment to the child. The trial court found that an award of permanent
custody was in the best interest of C.H., while all other requested dispositions were not. The
juvenile court further found that CSB had used reasonable efforts to prevent the child’s
continued removal from his home.
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{¶23} Mother filed a timely notice of appeal. She raises three assignments of error for
review. This Court consolidates some assignments of error to facilitate the discussion.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
GRANTED PERMANENT CUSTODY TO [CSB], TERMINATED MOTHER’S
PARENTAL RIGHTS AND PLACED THE CHILD IN THE PERMANENT
CUSTODY OF [CSB] WITH A FINDING [CSB] PROVIDED REASONABLE
REUNIFICATION EFFORTS PURSUANT TO R.C. 2151.419.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
[CSB] AS MOTHER WAS NOT AFFORDED AN OPPORTUNITY TO BE
INVOLVED IN THE CASE OF HER MINOR CHILD DUE TO [CSB’S]
FAILURE TO INVESTIGATE, ACKNOWLEDGE AND PROVIDE NOTICE
OF HEARINGS AND OTHER ISSUES RELATED TO THE DEPENDENCY
ACTION AND PROCEEDINGS IN CONTRADICTION TO DUE PROCESS
RIGHTS AFFORDED TO MOTHER UNDER THE UNITED STATES AND
STATE OF OHIO CONSTITUTIONS.
{¶24} In her first two assignments of error, Mother challenges the service of summons
of the complaint in this matter, arguing that any finding by the juvenile court that CSB had used
reasonable efforts to facilitate the reunification of C.H. with Mother was “illusory and
ineffectual” and, therefore, precluded an award of permanent custody to the agency. Mother
further argues that the agency’s failure to investigate and update its system and the juvenile court
regarding Mother’s residence violated her due process rights by depriving her of proper notice of
proceedings and the opportunity to be heard in a case implicating her fundamental rights
regarding her child.
{¶25} Parents have a fundamental liberty interest in the custody, care, and control of
their children. Troxel v. Granville, 530 U.S. 57, 65 (2000). A parent’s right to raise his or her
children is an essential one imbued with multiple constitutional protections including those
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arising out of the Fourteenth Amendment Due Process Clause. In re D.A., 113 Ohio St.3d 88,
2007-Ohio-1105, ¶ 9, quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972). Before the juvenile
court may permanently terminate parental rights, it must ensure that the parents have been
“‘afforded every procedural and substantive protection the law allows.’” In re D.A. at ¶ 10,
quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997).
{¶26} It is well established that “due process requires both notice and an opportunity to
be heard.” In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, ¶ 13, citing, e.g., Hagar v.
Reclamation Dist. No. 108, 111 U.S. 701, 708 (1884), and Caldwell v. Carthage, 49 Ohio St.
334, 348 (1892). Specific to service of process,
“[a]n elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.”
In re Thompkins at ¶ 13, quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). In the absence of notice of the proceedings, the juvenile court’s jurisdiction does not
attach. In re Mullenax, 108 Ohio App.3d 271, 274 (9th Dist.1996).
{¶27} For juvenile cases, Juv.R. 16(A) provides in relevant part that “summons shall be
served as provided in Civil Rules 4(A), (C) and (D), 4.1, 4.2, 4.3, 4.5 and 4.6. * * * [W]hen the
residence of a party is unknown and cannot be ascertained with reasonable diligence, service
shall be made by publication.” Civ.R. 4.4 addresses service of process by publication. Where a
parent’s residence is unknown, CSB may serve the complaint on the parent either by publication
in a newspaper pursuant to Civ.R. 4.4(A)(1), or by publication “by posting and mail” pursuant to
section (A)(2). (Emphasis added.) In either case, service of process by publication must be
supported by an affidavit averring:
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that service of summons cannot be made because the residence of the party to be
served is unknown to the affiant, all of the efforts made on behalf of the party to
ascertain the residence of the party to be served, and that the residence of the
party to be served cannot be ascertained with reasonable diligence.
Civ.R. 4.4(A)(1). Where the serving party opts for publication by posting and mail, the affidavit
“in addition, shall set forth the [ ] last known address [of the party to be served].” Civ.R.
4.4(A)(2). As a matter of public policy, some courts have recognized that “[t]he purpose of
including such last known address is possibly [to] allow someone there, or in the area, who
knows [the] whereabouts [of the party to be served], * * * to inform the [party] of the [action].
Consequently, such [party] would be able to enter an appearance and defend the action.” In re
Wilson, 21 Ohio App.3d 36, 39 (6th Dist.1984), quoting Northland Dodge, Inc. v. Damachi, 56
Ohio App.2d 262, 264 (10th Dist.1978).
{¶28} In this case, CSB attempted to serve Mother with the complaint by publication by
posting and mail pursuant to Civ.R. 4.4(A)(2). The agency’s affidavit averred that Mother’s
current residence was unknown and could not be ascertained with reasonable diligence. In
addition, the affiant averred as to the agency’s efforts to ascertain Mother’s current residence.
However, the affidavit did not set forth Mother’s last known address. Although the clerk of
court subsequently issued a notice of “Completion of Service by Posting and Certificate of
Mailing,” it stated only that “service by posting has been carried out.” The notice did not state
that the complaint was also mailed to Mother at her last known address.
{¶29} Mother argues that CSB was required to ensure that the complaint was also
mailed to Mother at the Ivanhoe address discovered by the agency, based on Mother’s assertion
that that was her last known address. Mother’s last known address, however, was
Grandmother’s address, where the intake caseworker knew Mother had been living immediately
prior to the removal of the child from Grandmother’s home. While Mother has misidentified
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Mother’s last known address, her underlying argument remains sound. To effectuate proper
service of the complaint on Mother, CSB was required to note her last known address in its
affidavit accompanying its instructions to the clerk of courts for service, so that service by
publication could be completed by both posting and mailing as required by Civ.R. 4.4(A)(2).
The agency failed to do so in this case, resulting in incomplete service of summons on Mother.
{¶30} Although Grandmother at one time had a protection order against Mother and
Father based on domestic violence charges before the agency removed the child from her home,
those circumstances did not preclude the mailing of the complaint to Mother at Grandmother’s
residence from being “reasonably calculated, under all the circumstances, to apprise” Mother of
the proceedings. See In re Thompkins at ¶ 13. The caseworker testified that she developed a
case plan objective requiring Grandmother to demonstrate that she could provide a safe
environment for C.H. and his siblings, specifically based on the incidents of domestic violence
by Mother and Father against Grandmother in her home. While discussing the concerns
underlying the complaint with Grandmother to develop case plan objectives designed to facilitate
reunification of the child with Grandmother, however, the caseworker learned that the protection
order had been revoked and the domestic violence charges dropped when Grandmother failed to
appear in court regarding them. The agency filed its original case plan containing that safety
objective on the same day it filed instructions with the clerk of court, supported by its affidavit,
to serve Mother by publication. Accordingly, the agency was already aware that the protection
order was no longer in effect when it instructed the clerk to serve Mother pursuant to Civ.R.
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4.4(A)(2). Under those circumstances, Mother might reasonably have received the complaint
had it been mailed to Grandmother’s residence, i.e., Mother’s last known address.1
{¶31} CSB was obligated to comply with Civ.R. 4.4(A)(2) to effectively serve Mother
with the complaint in the interest of due process. The agency failed to do so when it knew
Mother’s last known address yet failed to set forth that address in its affidavit. Mother’s first and
second assignments of error are sustained.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
REFUSED TO GRANT MOTHER AN EXTENSION OF TIME TO BECOME
ENGAGED AND ACTIVELY INVOLVED IN THE CASE WITH HER MINOR
CHILD PRIOR TO GRANTING PERMANENT CUSTODY TO [CSB].
{¶32} Mother argues that the juvenile court erred by failing to grant a six-month
extension of temporary custody to allow Mother time to actively engage in case plan services.
Based on this Court’s resolution of Mother’s first two assignments of error, her third assignment
of error is rendered moot, and we decline to address it. See App.R. 12(A)(1)(c).
III.
{¶33} Mother’s first and second assignments of error are sustained. This Court declines
to address the third assignment of error. The judgment of the Summit County Court of Common
Pleas, Juvenile Division, is reversed and the cause remanded for further proceedings consistent
with this opinion.
Judgment reversed,
and cause remanded.
1
Although not known by the caseworker until later in the case, Grandmother in fact had
been having contact with Mother throughout the case. For example, on one occasion, the
caseworker watched a virtual visit occurring in Grandmother’s home, where Grandmother tried
to hide Mother from the camera’s view while Mother was also in Grandmother’s home.
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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.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
DAVID M. LOWRY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.