In re C.H. , 2022 Ohio 1139 ( 2022 )

[Cite as In re C.H., 2022-Ohio-1139.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
IN RE:
C.H. CASE NO. 14-21-20
DEPENDENT AND NEGLECTED
CHILD. OPINION
[REBECCA P. - APPELLANT]
Appeal from Union County Common Pleas Court
Juvenile Division
Trial Court No. 2019JC147
Judgment Affirmed
Date of Decision: April 4, 2022
APPEARANCES:
Courtland A. Perry for Appellant
Emma Mirles-Jones for Appellee
Case No. 14-21-20
MILLER, J.
{¶1} Appellant, Rebecca1 P., appeals the August 3, 2021 judgment of the
Union County Court of Common Pleas, Juvenile Division, granting permanent
custody of her biological son, C.H., to appellee, Union County Department of Job
and Family Services (the “Agency”). For the reasons that follow, we affirm.
Facts and Procedural History
{¶2} Rebecca P. (“Mother”) and Brandon H. are the biological parents of
C.H., born August 2011.2 On December 20, 2019, the Agency requested an ex parte
order for emergency temporary custody of C.H. In support of the motion, the
Agency alleged it received a report that Mother had been in possession of an illegal
substance believed to be fentanyl. Furthermore, the Agency alleged that another
occupant of the house found Mother and her boyfriend, Timothy Schaffer,
overdosed on drugs on several occasions over the previous month. The Agency
reported that Mother submitted to a drug screen which returned a positive result for
fentanyl. That same day, after conducting an emergency hearing on the matter, the
1
We note that in her appellate brief, Mother refers to herself as “Becca,” however, because the notice of
appeal names the appellant as “Rebecca,” we have chosen to refer to her as such here. The discrepancy is
more fully addressed in our discussion of Mother’s first assignment of error.
2
Although Brandon is a party to the proceeding, the record does not indicate that he filed a notice of appeal.
Furthermore, by all accounts, Brandon had no interest in being part of the case plan or having any role in
C.H.’s life. In fact, although Brandon attended a portion of the permanent-custody hearing, he chose not to
return after the lunch recess. (July 30, 2021 Tr., Vol., II, at 5). At closing arguments, Brandon’s attorney
stated that Brandon did not contest the Agency’s motion for permanent custody and believed that granting
permanent custody to the Agency was in C.H.’s best interest. (Id. at 108-109). Accordingly, our review
focuses primarily on the trial court’s findings as they relate to Mother.
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trial court granted the Agency’s emergency ex parte motion for temporary custody
of C.H.
{¶3} On December 23, 2019, the Agency filed a complaint alleging C.H. was
a neglected and dependent child and requesting the trial court place the child in its
temporary custody. Following a shelter-care hearing, held that same day, the trial
court determined there was probable cause to find that C.H. was neglected and
dependent. Further, the trial court continued C.H. in the Agency’s temporary
custody.
{¶4} At an adjudicatory hearing held before a magistrate on March 3, 2020,
the trial court found C.H. to be a neglected child under R.C. 2151.03(A)(2) and a
dependent child under R.C. 2151.04(C). Further, the magistrate continued C.H. in
the Agency’s temporary custody pending disposition. The magistrate filed its
decision on March 4, 2020. That same day, the trial court adopted and approved the
magistrate’s decision.
{¶5} The following day, a dispositional hearing was held before a magistrate.
In the magistrate’s decision filed on March 6, 2020, the trial court found that it is in
C.H.’s best interest for the trial court to continue C.H. in the Agency’s temporary
custody. On March 25, 2020, the trial court adopted and approved the magistrate’s
decision. Mother did not file an appeal challenging C.H.’s adjudication and initial
disposition.
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{¶6} Throughout 2020, the trial court conducted several review hearings,
each of which resulted in C.H. being continued in the Agency’s temporary custody.
Eventually, on February 18, 2021, the Agency filed a motion for permanent custody
of C.H.
{¶7} At the conclusion of the permanent-custody hearing on July 30, 2021,
the trial court granted the Agency’s motion and awarded the Agency permanent
custody of C.H. The trial court filed its judgment entry reflecting its decision on
August 3, 2021.
{¶8} On September 3, 2021, Mother filed a notice of appeal. She raises five
assignments of error for our review.
Assignment of Error No. I
The trial court committed reversible error by terminating the
parental rights of “[Rebecca P.]” when the State failed to establish
by clear and convincing evidence who was the mother of [C.H.]
and that error was extremely prejudicial to [C.H.’s] biological
mother [Becca P.].
{¶9} In Mother’s first assignment of error, she argues that the trial court erred
by terminating the parental rights of “Rebecca P.” despite C.H.’s biological
mother’s legal name being “Becca P.”3 Specifically, Mother argues that the Agency
failed to establish the identity of C.H.’s biological mother by clear and convincing
3
Mother does not allege that the trial court made any error with respect to her last name. Rather, the
assignment of error only concerns Mother’s first name.
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evidence, thereby violating her right to due process. For the reasons that follow, we
disagree.
{¶10} Throughout the judgment entry granting permanent custody of C.H. to
the Agency, the trial court refers to C.H.’s biological mother as “Rebecca.”
However, in the complaint and throughout the vast majority of the record, C.H.’s
biological mother is referred to as “Becca.”
{¶11} The transcript of the permanent-custody hearing indicates that Mother
and her trial counsel engaged in the following exchange:
[Mother’s trial counsel]: Miss [P.], please state your name and
address.
[Mother]: Rebecca [P.] * * *.
[Mother’s trial counsel]: And what is your relationship with
[C.H.]?
[Mother]: Mother.
(July 30, 2021 Tr., Vol. II, at 61). Additionally, the transcript was signed and
certified as correct by the trial court judge who was personally present in the
courtroom during the proceedings. (Id. at 125). Thus, the certified record indicates
that Mother testified at the permanent-custody hearing that her name was “Rebecca”
and she was C.H.’s biological mother.
{¶12} We note that Mother’s appellate counsel, for the first time at oral
argument, suggested that the transcript was incorrect. Specifically, Mother’s
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appellate counsel, who was not present in the courtroom during the trial court
proceedings, stated that after listening to the audio recording of the permanent-
custody hearing, she believed Mother did not actually say that her name was
“Rebecca” but instead cleared her throat and then said “Becca.” Mother’s trial
counsel opined that, as a result of Mother’s lack of diction and clarity, the court
reporter, who prepared the transcript from the audio recording, incorrectly
transcribed Mother’s name as “Rebecca.”
{¶13} However, the burden is on the appellant to seek to correct or
supplement the record in accordance with App.R. 9(E), if the appellant believes that
there is an error in the record that is not portrayed in the transcript. Here, Mother
did not attempt to modify, correct, or supplement the transcript in accordance with
App.R. 9(E). Accordingly, any error relating to the accuracy of the transcript is
waived. See generally State v. Holsinger, 4th Dist. Lawrence No. 18CA26, 2019-
Ohio-5108, ¶ 10. See also State v. Drurey, 9th Dist. Medina No. 18CA0098-M,
2020-Ohio-227, ¶ 8 (“The obligation to provide all portions of the record necessary
for appellate review falls to the appellant.”).
{¶14} Moreover, we note that throughout the permanent-custody hearing,
Mother’s trial counsel referred to her as “Rebecca.” The record does not indicate
that Mother made any attempt to correct her trial counsel on the record.
Furthermore, although the complaint, C.H.’s birth certificate, and the vast majority
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of filings in the case note Mother’s name as “Becca,” several filings do refer to
Mother as “Rebecca.” (Doc. Nos. 162, 163, 166). The record does not indicate that
Mother brought the alleged error to the trial court’s attention or requested that the
trial court remedy the alleged error.
{¶15} Furthermore, although Mother summarily argues in her appellate brief
that the Agency failed to establish the identity of C.H.’s biological mother, the
record does not support her position. As previously discussed, at the permanent-
custody hearing, Mother identified herself as the biological mother of C.H.
Throughout her testimony, Mother repeated her assertion that she is C.H.’s mother
and testified to her progress working the case plan. Moreover, Mother’s testimony
that she is the biological mother of C.H. was consistent with the testimony of the
other witnesses. Furthermore, at no point did any other witness or party come
forward claiming to be the biological mother of C.H. and there is no argument that
“Becca” and “Rebecca” are different people. Thus, we cannot find that the Agency
failed to establish the identify of C.H.’s biological mother.
{¶16} Furthermore, although the record does refer to Mother as both “Becca”
and “Rebecca,” we do not find that the trial court committed reversible error by
referring to her as “Rebecca” in the judgment entry granting the Agency permanent
custody of C.H., particularly in light of the certified transcript indicating that Mother
testified that her name is “Rebecca.” Nonetheless, under the circumstances, it would
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not be inappropriate for the trial court to issue a nunc pro tunc judgment entry
clarifying that Mother is also known as “Becca.”
{¶17} Accordingly, Mother’s first assignment of error is overruled.
Assignment of Error No. II
The trial court lost its way in terminating parental rights of
[Rebecca P.] contrary to the manifest weight of the evidence that
[C.H.’s] biological mother had made substantial process in the
case plan having maintained sobriety for approximately 10
months, had stable employment for 8 months, had stable housing,
was paying child support, had purchased a birthday present, was
participating in regular Zoom meetings despite having
transportation challenges in addition to navigating all of the
challenges posed by a global pandemic.
Assignment of Error No. III
The trial court erred by terminating parental rights to [C.H.]
when the Union County Children Services failed to make
reasonable efforts to assisting Mother obtain better housing
options or more reliable transportation for visitation purposes,
while then condemning her for not securing ideal stable housing
and failing to visit with [C.H.].
Assignment of Error No. IV
The trial court erred in finding that Mother could not remedy the
conditions of the complaint in a reasonable time despite
acknowledging that Mother had been significantly stable because
the Court felt that Mother did not have a plan if [C.H.] were
returned to her. However, the Court failed to consider that the
Agency did not have a plan for achieving permanancy [sic] either
when no adoptive home had been identified, no family member
was being considered for legal custody, and the 10 year old child
was doomed to spend the rest of his life in a residential treatment
facility.
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{¶18} In Mother’s second, third, and fourth assignments of error, she argues
that the trial court erred by granting permanent custody of C.H. to the Agency.
Although presented as separate assignments of error, in her appellate brief, Mother
presents the arguments as various challenges to the weight of the evidence
supporting the trial court’s granting of permanent custody to the Agency.
Accordingly, we will address them together as such.
Manifest-Weight Review of Permanent-Custody Decisions
{¶19} “When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court “‘weighs
the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered.”’” In re Dn.R., 3d Dist. Shelby No. 17-
20-06, 2020-Ohio-6794, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th
Dist.2001).
{¶20} In a permanent custody case, the ultimate question for a reviewing
court is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 43.
“Clear and convincing evidence” is the “‘measure or degree of proof that will
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produce in the mind of the trier of fact a firm belief or conviction as to the allegations
sought to be established. It is intermediate, being more than a mere preponderance,
but not to the extent of such certainty as required beyond a reasonable doubt as in
criminal cases. It does not mean clear and unequivocal.’” In re Dn.R. at ¶ 17,
quoting In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986). “In determining
whether a trial court based its decision upon clear and convincing evidence, ‘a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.’” Id. at ¶ 18,
quoting State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). “Thus, if the children
services agency presented competent and credible evidence upon which the trier of
fact reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of the
evidence.” In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013-Ohio-
3588, ¶ 55.
{¶21} “Reviewing courts should accord deference to the trial court’s decision
because the trial court has had the opportunity to observe the witnesses’ demeanor,
gestures, and voice inflections that cannot be conveyed to us through the written
record.” In re S.D., 5th Dist. Stark No. 2016 CA 00124, 2016-Ohio-7057, ¶ 20. “A
reviewing court should find a trial court’s permanent custody decision against the
manifest weight of the evidence only in the “‘exceptional case in which the evidence
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weighs heavily against the [decision].”’” In re Dn.R. at ¶ 19, quoting State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist.1983).
Standards & Procedures for the Termination of Parental Rights
{¶22} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and
management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not
absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These
rights may be terminated under appropriate circumstances and when the trial court
has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-
52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶23} “R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re
B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for
permanent custody of a child, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,
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2015-Ohio-2740, ¶ 13. “R.C. 2151.414(B)(1) establishes a two-part test for courts
to apply when determining whether to grant a motion for permanent custody: (1) the
trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-(e)
applies, and (2) the trial court must find that permanent custody is in the best interest
of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶ 10.
{¶24} As relevant to this case, R.C. 2151.414(B)(1) provides:
[T]he court may grant permanent custody of a child to a movant if the
court determines at a hearing held pursuant to [R.C. 2151.414(A)], 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:
***
(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 * * *.
R.C. 2151.414(B)(1)(d).
{¶25} “‘If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which
requires the trial court to ‘determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.’”
In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39, 2017-Ohio-142,
¶ 23, quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 55 and
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citing R.C. 2151.414(B)(1). “The best interest determination is based on an analysis
of R.C. 2151.414(D).” Id.{¶26} “Under R.C. 2151.414(D)(1), the trial court is required to consider all
relevant factors listed in that subdivision, as well as any other relevant factors.” Id.
at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-
Ohio-755, ¶ 27. The factors specifically listed in R.C. 2151.414(D)(1) are:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(b) 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;
(c) The custodial history of the child, including whether 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 * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
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R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the
circumstances when making its best interest determinations. No single factor is
given more weight than others.” In re N.R.S., 2018-Ohio-125, at ¶ 16.
Analysis
{¶27} Mother does not dispute that C.H. had been in the Agency’s temporary
custody for 12 or more months of a consecutive 22-month period at the time the
Agency filed its motion for permanent custody on February 18, 2021. Therefore,
Mother does not challenge the trial court’s determination that R.C.
2151.414(B)(1)(d) applies to C.H. Instead, Mother argues the trial court erred by
determining that permanent custody is in C.H.’s best interest. However, after
examining the trial court’s best-interest findings and reviewing the record, we
conclude that clear and convincing evidence supports the trial court’s best-interest
determination.
R.C. 2151.414(D)(1)(a)
{¶28} With respect to R.C. 2151.414(D)(1)(a), the trial court found as
follows:
Pursuant to R.C. 2151.414(D)(1)(a), as to the interaction and
interrelation of the child with the child’s parents, relatives, foster
caregivers, out of home providers and any other person who may
significantly affect the child, the Court considers the evidence of the
parents’ failure to complete the Case Plan and the lack of sustained,
meaningful, and successful engagement in Case Plan services
designed to help Mother address and ameliorate her drug abuse,
housing, parenting and other issues that would reasonably ensure the
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child’s health, safety and well-being. Father has not engaged at all.
Mother failed to complete the terms of the Case Plan and failed to
comply with the terms of the Family Treatment Court. Mother also
failed to consistently visit the minor child, often cancelling visits.
Further, evidence established that Mother’s presence was a “trigger”
for the minor child and his negative behaviors were worse following
any visit with Mother. Finally, while some relatives stepped forward
for placement, they all requested that the child be removed from their
care due to his behaviors. No relatives were identified or filed any
motions seeking custody of the minor child.
(Doc. No. 289).
{¶29} At the permanent custody hearing, Victoria Sexton, C.H.’s ongoing
caseworker from December 2019 to March 2021, testified that the Agency became
involved in C.H.’s case in December 2019 when it received a report alleging
members of C.H.’s household used illegal substances around the child. (July 30,
2021 Tr., Vol. II, at 5-7). After Mother tested positive for fentanyl, the Agency
created a safety plan which did not allow Mother to be unsupervised around C.H.
(Id. at 8). Sexton testified that C.H. has been in the Agency’s custody since that
time. (Id. at 8-9). According to Sexton, C.H. had multiple placements, including
several kinship placements and several placements with foster families; however,
he was removed from each of those placements due to his behaviors at the request
of the care providers. (Id. at 12-16). Some of the behaviors described by C.H.’s
caregivers included violent behaviors such as hitting other foster children and pets,
sexualized behaviors such as viewing pornographic materials, taking nude photos
of himself and other children, smearing feces, and trying to inappropriately touch
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his foster mother, and destructive behaviors such as destroying his bedroom and
breaking televisions. (July 30, 2021 Tr., Vol. I, at 26, 68-70, 72-73, 85-86, 97-98).
Additionally, his caregivers recalled that he was prone to extreme outbursts of anger
and experienced volatile and erratic behaviors. (Id. at 79-82, 109-113). At times,
C.H.’s behavior elevated to such extremes that his caregivers called local law
enforcement to intervene. (Id. at 81-82). At the time of the permanent-custody
hearing, C.H. was placed at a residential treatment facility. (July 30, 2021, Tr., Vol.
II, at 16).
{¶30} Sexton testified that Mother had supervised visitations with C.H.
throughout the duration of the Agency’s case; however, Mother was “not consistent
at all” in exercising visitation. (Id. at 31-32). Specifically, Sexton testified that
Mother began having visitations with C.H. in January 2020, but missed a visit the
following month. (Id. at 33). When in-person visits resumed following a pause
caused by the Covid-19 pandemic, Mother would attend the visits “sometimes.” (Id.
at 34). However, in August 2020, Sexton reported that Mother “completely
disappeared” and did not have any contact with C.H. or the Agency for the entire
month. (Id.). According to Sexton, although Mother resumed visitations with C.H.
in September 2020, she would cancel the visits “for various reasons” and would
sometimes not show up for visits without explanation. (Id.). Sexton confirmed that
in the time the case had been open, Mother did not exercise any unsupervised
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visitations with C.H. because she never showed up to visitations consistently or she
gave positive drug screens, establishing her continued use of illegal substances. (Id.
at 36).
{¶31} Joanne Rowland, C.H.’s foster parent from October 2020 to March
2021, confirmed that although C.H. had visitations with Mother during this time,
there were some visitations that Mother missed. (July 30, 2021 Tr., Vol. I, at 74-
75). Further, Rowland testified that following missed visitations with Mother,
C.H.’s behavioral challenges worsened significantly. (Id. at 74-83). Further,
Rowland stated that when Mother cancelled visitations, C.H. would get “really
angry” and state that Mother did not love him and did not want to be with him. (Id.
at 89).
{¶32} In one example, Rowland was in the car with C.H. when the ongoing
caseworker called to inform her that Mother was not able to visit C.H. on
Thanksgiving due to her failure to comply with the Covid-19 quarantine
requirements of the sober living house where the family treatment court required
her to reside. Rowland recalled that C.H. “lost it” at that moment. (Id. at 75-76).
Rowland testified that C.H. was incontinent 17 times in a period of approximately
two days and continued to have incontinence issues from that time on. (Id. at 76).
Further, C.H. chose not to be engaged with members of Rowland’s household and
had increased sleeping difficulties. (Id. at 77-78).
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{¶33} Rowland also recalled Mother’s visitation with C.H. on Christmas Day
of 2020. (Id. at 79). During this visitation, a Christmas present fell on the floor and
C.H. reportedly “lost it.” (Id. at 79). Rowland testified that C.H. cried and screamed
at his Mother telling her that he hates her and asking her why she doesn’t love him.
(Id. at 79). Then, C.H. ripped up pictures of C.H. and Mother. (Id.). Rowland
stated that Mother tried to calm C.H. down, but that Mother’s efforts actually made
C.H. more upset. (Id.). Rowland reported that C.H. eventually calmed down and
continued the visit with Mother. (Id. at 79-80). However, Rowland described
C.H.’s behavior in the days following the Christmas incident as “out of control.”
(Id. at 80). Rowland recalled that C.H. threatened to kill her, broke household items,
and started acting out aggressively toward Rowland, the household pets, and
Rowland’s other foster child. (Id. at 80-81). Several times, the incidents required
the assistance of law enforcement officers. (Id. at 81-82).
{¶34} According to Rowland, during the week following Mother’s
Christmas visitation, C.H.’s behavior and mental well-being reached a point that he
was suicidal and homicidal and spent six days in the local hospital until he was
stable enough to return to Rowland’s home. (Id. at 82-83). Following his release
from the hospital, C.H. was admitted into Youth Challenges, a partial-
hospitalization program for children with behavioral challenges. (Id. at 83).
However, Rowland stated that C.H.’s behaviors were beyond the scope of the Youth
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Challenges program. (Id.). Then, C.H. was admitted into a youth residential-
treatment program at Genacross and was released from Rowland’s care. (Id.).
{¶35} Sexton, who supervised some visitations between C.H. and Mother
testified that during the visits, C.H. and Mother would interact and engage in
activities together. (July 30, 2020 Tr., Vol. II, at 38). However, Sexton recalled
C.H. telling Mother that he doesn’t want to have visitations. Further, Sexton
described an “outburst” she witnessed in December 2020 that involved C.H.
screaming, crying, and “trashing” his room. (Id. at 37-38).
{¶36} Susan Thompson, a pediatric nurse practitioner who treated C.H. from
May 2020 to March 2021, testified that she diagnosed C.H. with post-traumatic
stress disorder (“PTSD”) and an adjustment disorder with mixed emotions and
conduct. (July 30, 2021 Tr., Vol. I, at 17-18). Thompson stated that C.H. presented
to her as a child who had been neglected, physically abused, and potentially sexually
abused. (Id. at 42-43). Thompson described Mother as a “trigger” for C.H. (Id. at
21). She also described the source of C.H.’s trauma as being afraid of Mother. (Id.
at 23). Thompson described some of C.H.’s behaviors, such as encopresis and
incontinence, as being common in children with moderate to severe abuse and
trauma. (Id. at 26-27). Thompson relayed her understanding that C.H.’s behaviors
would worsen following exposure to his Mother and described Mother’s missed
visits as “trauma.” (Id. at 28).
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{¶37} With respect to C.H.’s relationship with Mother, Thompson stated that
C.H. had a desire to have his Mother love him and express that love. (Id. at 29).
Moreover, Thompson stated that she did not doubt that C.H. and Mother had love
for each other. (Id.). However, Thompson indicated that Mother not being
consistent with visitations and making promises to C.H. which were not followed
through as “one insult to [C.H.] after another.” (Id.).
{¶38} Thompson also testified that she wrote a letter to Union County
Children’s Services in January 2021 requesting the Agency suspend C.H.’s
visitations with Mother. (Id. at 29). Thompson stated that, at the time she wrote the
letter, she believed that C.H. “needed a break from his mother” because of Mother’s
lack of consistency in visitation was “too much” for C.H. (Id. at 30). According to
Thompson, whether Mother saw C.H. or not, “she was the main trigger” for his
behaviors. (Id. at 29-30).
{¶39} For her part, Mother admitted that she is “very aware” of the impact
on C.H. and the negative behaviors that occurred when she canceled visitations.
(July 30, 2021 Tr., Vol. II, at 87). Mother further acknowledged that it was not in
C.H.’s best interest for her to continue to miss scheduled in-person visitations. (Id.
at 88). Nevertheless, she admitted that she has not exercised in-person visitation
with C.H. in the time that he has been at Genacross despite having two in-person
visitations scheduled. (Id. at 65-66). Mother stated that she missed the first
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visitation due to transportation issues and she missed the second visitation because
she “misunderstood the date” of the visitation and transcribed it incorrectly into her
calendar. (Id. at 90). Mother stated that she had several recent visitations with C.H.
over video conference. (Id. at 90-91). Mother also indicated that she had an in-
person visitation with C.H. scheduled for that upcoming Sunday and that she
arranged reliable transportation for that visitation. (Id. at 91). According to Mother,
the visitation was to celebrate C.H.’s birthday and she stated that she had a birthday
present purchased for him. (Id. at 88-89).
{¶40} Mother attributes C.H.’s angry outbursts to missing her. (Id. at 92).
She stated that C.H. has “every right to be angry with [her]” but that he “misses
[her] at the same time.” (Id. at 91-92). She alleged that C.H.’s behavioral outbursts
following her visitations or missed visitations are being used against her to make “it
look like [they are] toxic for each other.” (Id.). However, she admitted that the
escalated behaviors result when she fails to follow through on her commitment to
visit him. (Id. at 94). Mother opined that C.H.’s behaviors would escalate after a
cancelled meeting because he does not understand that he cannot come home with
her. (Id.). According to Mother, this misunderstanding leads C.H. to be angry and
act out. (Id.). Mother admitted that C.H. is angry with her but stated that he loves
her and needs her in his life. (Id. at 91-92). Mother further acknowledged, that C.H.
has had “so much instability” in his life and “is confused.” (Id. at 94).
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{¶41} With respect to their relationship, Mother stated that she and C.H. used
to be very bonded but that they are not as bonded anymore. (Id. at 92). However,
she attributed their strained relationship to the ongoing case with the Agency which
forced them to be separated. (Id.).
{¶42} At the permanent-custody hearing, Sexton outlined the case plan that
the Agency developed for C.H. and Mother. (July 30, 2021 Tr., Vol. II, at 22). (See
State’s Ex. 10). The most recent version of the case plan outlined four concerns
relating to the family and the action steps necessary to address each of the concerns.
(July 30, 2021 Tr., Vol. II, at 22). Three of the concerns related specifically to
Mother and one of the concerns related exclusively to C.H. (Id.). The first concern
stated was that Mother was not able to maintain consistent housing. (Id.). The steps
outlined to address this concern were (1) Mother would apply for Section 8 rental
assistance; (2) Mother would explore and apply for low income or subsidized
housing; (3) Mother would obtain a safe and stable place that C.H. can live in; and
(4) Mother will utilize People in Need, Inc. of Delaware County if she is facing
eviction or utility shut off. (Id. at 22-23).
{¶43} With respect to this concern and the related actions steps, Sexton
stated that Mother moved frequently throughout the case and, at the time of the filing
of the motion for permanent custody, had recently moved in with her new boyfriend.
(Id. at 23). According to Sexton, throughout the case, Mother did not establish a
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stable residence and was often living with other people. (Id. at 23-24). Sexton
stated that Mother is on the wait list for one low-income apartment complex, but
she did not apply for Section 8 rental assistance. (Id.). Further, People in Need of
Delaware County did not provide assistance for Mother. (Id. at 23). Sexton stated
that she did not believe Mother had obtained a safe and stable place for C.H. to live.
(Id. at 23). For her part, Mother admitted that she lived at nine different addresses
during the pendency of the instant case. (Id. at 76-77). However, she stated that
she was now living in a stable home, although her name was not on the lease. (Id.
at 76-77, 88).
{¶44} The second concern addressed in the case plan related to Mother’s use
of illegal substances in the home with C.H. present. (Id. at 24). To address this
concern, the Agency developed several actions steps. (Id.). First, Mother was to
receive an assessment for Union County Family Treatment Court (“FTC”), and if
eligible, participate in FTC and comply with FTC court orders. (Id.). Mother was
also to receive a mental-health assessment and alcohol-and-drug assessment
(“AOD”) from a provider of her choice. (Id.). According to Sexton, Mother did
complete a mental-health assessment and AOD. (Id. at 25). Mother also received
an assessment for FTC and was eligible to participate. (Id.). Lauren Levingston,
the Union County Juvenile and Probate Court treatment coordinator testified that
Mother entered FTC on July 23, 2020. (July 30, 2021 Tr., Vol. I, at 115, 117).
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However, for the majority of her participation in FTC, Mother was non-compliant.
(Id. at 120). Levingston stated that the major cause of Mother’s non-compliance
was her drug use. (Id.). Specifically, Levingston testified that Mother had multiple
positive drug screens for cocaine and fentanyl. (Id.). (See State’s Ex. 1, 2).
Levingston stated that in the beginning of her participation in FTC, Mother
struggled to be free of substances. (July 30, 2021 Tr., Vol. II, at 124). However,
once she did remain clean of substances, she struggled with the expectations of FTC.
(Id.). For example, when Mother was residing in a sober-living home, she refused
to follow the home’s requirements relating to quarantine following an exposure to
Covid-19. (Id. at 124-129). Rather, Mother chose to leave the sober-living housing
to go to work and to the nail salon. (Id. at 124). Further, due to her unwillingness
to quarantine for the required time, she was unable to exercise visitation with C.H.
during Thanksgiving 2020 due to concerns that she could expose C.H. to Covid-19.
(Id. at 128-129). Levingston testified that Mother was not successful in FTC and
agreed to be unsuccessfully terminated from FTC in January 2021. (Id. at 129-130).
{¶45} Mother agreed that her tenure with FTC was “challenging” and that
she was non-compliant more often than she was compliant during the program.
(July 30, 2021 Tr., Vol. II, at 77-78). Mother acknowledged that she had non-
compliances due to both failed drug screens and missed drug screens. (Id. at 78-
79). Mother admitted that she agreed to be unsuccessfully terminated from FTC,
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but thought that it was in her best interest at the time, even though she knew it may
have negative repercussions with the ongoing case. (Id. at 79-80). Mother also
admitted that she chose not to follow the quarantine requirements of the sober-living
home and instead chose to go to work and get her nails done. (Id. at 80). Mother
further conceded that in making the decision not to quarantine, she was thinking
about maintaining her employment rather than her visitations with C.H. (Id. at 82).
{¶46} Next, the case plan required Mother to follow any recommendations
made by treatment providers, including individual therapy. (Id. at 24). Sexton
testified that Mother was assessed by several mental-health providers who
recommended that she receive individual and group counseling. (Id. at 25-26).
However, according to Sexton, Mother did not comply with the providers’
recommendations. (Id.). Rather, she sporadically attended counseling sessions and
frequently missed sessions, often without notice. (Id. at 26-27). Mother admitted
during her testimony that she was not currently attending counseling sessions and
does not believe she needs to be in counseling. (Id. at 66-67); (July 30, 2021 Tr.,
Vol. I, at 82-84).
{¶47} The case plan also required Mother to submit to random drug tests as
required by the Agency. (July 30, 2021 Tr., Vol. II, at 24-25). Sexton and
Levingston both testified that Mother had multiple missed drug screens and drug
screens which indicated the presence of illegal substances. (Id. at 27); (July 30,
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2021 Tr., Vol. I, at 121-122). Specifically, Sexton testified that Mother had
approximately 10 to 15 positive screens for fentanyl and that Mother failed to
complete approximately 10 to 15 additional drug screens. (July 30, 2021 Tr., Vol.
II, at 27). Mother admitted she had some missed and positive drug screens but
maintained she was currently not using illegal drugs. (Id. at 72-73, 77-79).
{¶48} Sexton testified that the case plan’s final concern relating to Mother
was that C.H. had made statements that his Mother did not care about him or that
he wanted her to leave visitations. (Id. at 28). Further, C.H.’s negative behaviors
increase following visitations and phone calls with Mother. (Id.). Additionally,
Mother has used poor judgement with respect to individuals she allows to be around
C.H. (Id.). To address the case plan concerns, Mother was to attend an assessment
for family services at Ohio Guidestone. (Id. at 29). Mother was then to comply
with the recommendations of the assessment including completing a parenting
instruction program. (Id. at 29-30). Mother was also to receive particularized
instruction and guidance regarding C.H.’s particularized behavioral and mental-
health needs. (Id. at 30). However, according to Sexton, Mother did not complete
the evaluation with Ohio Guidestone and, therefore, did not complete the counseling
and services outlined in the case plan. (Id.).
{¶49} Thus, based on the foregoing, it is clear that C.H.’s visitations with
Mother, or lack thereof, were a source of great turmoil for C.H. Furthermore,
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Mother did not complete the terms of the case plan. Moreover, although C.H. was
placed with several kinship providers during the course of the case, the providers all
requested he be removed from their care due to his behavior. Thus, the record
supports the trial court’s findings under R.C. 2151.414(D)(1)(a).
R.C. 2151.414(D)(1)(b)
{¶50} Regarding R.C. 2151.414(D)(1)(b), the trial court found that “[C.H.’s]
wishes, as expressed through his CASA/Guardian ad litem, were that he wished to
be with Mother but then spoke of returning to the home of Ms. Rowland, a former
foster parent.” (Doc. No. 289). At the permanent-custody hearing, John Murray,
C.H.’s GAL, testified that, if given the choice, C.H. would likely say that he wants
to live with “mom.” (July 30, 2020 Tr., Vol. II, at 97-98). However, Murray stated
that he was not sure that C.H. was referencing Mother. (Id. at 98). Murray
recounted that when he asked C.H. in May 2021 who he wanted to live with, C.H.
was actually referencing Rowland when he spoke about his “mom.” (Id.). Murray
opined that what C.H. actually wants is “stability.” (Id.). Therefore, the record
supports the trial court’s findings under R.C. 2151.414(D)(1)(b).
R.C. 2151.414(D)(1)(c)
{¶51} As to R.C. 2151.414(D)(1)(c), the trial court stated, “[t]he Court
considered the custodial history of the child and the fact that the child has been in
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the temporary custody of the agency for twelve or more months of a consecutive
twenty-two month period.” (Doc. No. 289).
{¶52} It is undisputed that the Agency first gained temporary custody of C.H.
on December 20, 2019 and that he remained in the Agency’s temporary custody
from that date through the date of the permanent-custody hearing on July 30, 2021.
Moreover, at the permanent-custody hearing, Sexton testified that C.H. has been in
the temporary custody of the Agency since December 20, 2019 and provided
testimony regarding each of his placements during that time. (July 30, 2021 Tr.,
Vol. II, at 8-9, 14-16). Thus, the record supports the trial court’s findings under
R.C. 2151.414(D)(1)(c).
R.C. 2151.414(D)(1)(d)
{¶53} With respect to R.C. 2151.414(D)(1)(d), the trial court found as
follows:
Pursuant to R.C. 2151.414(D)(1)(d), as to the child’s need for a
permanent placement and whether that type of placement can be
achieved without a grant of permanent custody to the Agency, the
Court finds by clear and convincing evidence that [C.H.] cannot
achieve a permanent placement unless permanent custody is granted
to the Agency. Although Mother wishes to have six more months to
work the Case Plan, she already has had about 19 months to do so.
During that time, she failed to complete the Case Plan services, failed
to visit consistently with the minor child and cancelled many visits.
Mother testified that she had no plan if the child were to be returned
to her other than [C.H.] would be residing with her and Mr. Douglas,
a Tier I sex offender, as testified to, which would not be a good
environment for the minor child. Given the issues involved herein
and due to the significant needs of the child, it does not appear that
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Mother is able to safely parent the child and deal with his behaviors.
She has not availed herself of any programs to help train her to care
for the minor child considering his particularized needs. Further, her
intermittent involvement with the child has been a trigger for the
child’s escalating behaviors. The child’s Father, [Brandon H.], has
indicated that he does not wish to have the child in his home. No other
permanent placements have been identified.
(Doc. No. 289).
{¶54} At the permanent custody hearing, Mother testified that she wished to
have C.H. returned to her care and requested six more months to work on the case
plan. (July 30, 2021 Tr., Vol. II, at 68). Mother stated that she could “possibly” be
an appropriate placement for C.H. again. (Id. at 68, 71-72). Mother testified that she
is living in a home with her current boyfriend, Dustin Douglas. (Id. at 76-77).
However, she admitted that Douglas is a Tier I registered sex offender and was
placed on the sex offender registry for unlawful sexual conduct with a minor. (Id.
at 77). Mother stated that she does not “technically want to” bring C.H. into a home
with a sexual offender; however, she stated that she is currently pregnant with
Douglas’s child and wants to have Douglas’s support in raising their unborn child
and she intends to stay in the home with him. (Id. at 64, 77). Murray, C.H.’s GAL
expressed concern that Mother was living with a registered sex offender and
intended to bring C.H. into the home. (Id. at 97).
{¶55} Furthermore, Mother testified that she has never called to speak to
C.H.’s doctors or counselors. (Id. at 71). Mother admitted that she does not have a
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plan as to where C.H. would receive ongoing services and counseling if he was
returned to her care. (Id. at 72). When asked if she would be able to handle C.H.’s
behaviors if he was returned to her care, Mother answered, “I think I would do my
best to handle his behaviors. They are a lot. * * * I think there needs to be a lot of
family counseling done * * * for both of us * * * which has not been done * * *.”
(Id. at 71). Mother further admitted that she has not been incorporated into C.H.’s
current counseling sessions. (Id. at 66). Mother also stated that she did not have
reliable transportation to get C.H. to medical appointments. (Id. at 65- 66).
Although, she testified that she planned on getting another vehicle “soon.” (Id. at
66).
{¶56} “‘A legally secure permanent placement is more than a house with four
walls. Rather, it generally encompasses a stable environment where a child will live
in safety with one or more dependable adults who will provide for the child’s
needs.’” In re K.M., 3d Dist. Crawford Nos. 3-18-11 and 3-18-12, 2018-Ohio-3711,
¶ 29, quoting In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. By
all accounts, C.H. is a child with specialized behavioral and mental-health needs.
However, through her lack of commitment to the case plan, Mother has failed to
demonstrate that she has the ability to provide a permanent placement for the child.
In addition to her failure to consistently engage in visitation with C.H. and complete
the counseling and parenting courses outlined in the case plan, Mother also intended
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Case No. 14-21-20
to bring C.H. into a home with an individual convicted of a sexual crime involving
a minor. Mother failed to demonstrate that she has the ambition and ability to tend
to C.H.’s particularized medical and behavioral needs. Ultimately, by failing to
adequately remedy the conditions that resulted in C.H.’s removal from her home,
Mother has not demonstrated she is capable of dependably providing for C.H.’s
particularized needs in a stable environment. Thus, the record supports the trial
court’s findings under R.C. 2151.414(D)(1)(d).
{¶57} In sum, competent and credible evidence supports each of the trial
court’s best-interest findings. Based on the testimony presented at the permanent-
custody hearing, clear and convincing evidence supports the trial court’s
determination that permanent custody is in C.H.’s best interest. Therefore, we
conclude that the trial court’s decision awarding permanent custody of C.H. to the
Agency is not against the manifest weight of the evidence.
{¶58} Accordingly, Mother’s second, third, and fourth assignments of error
are overruled.
Assignment of Error No. V
The trial court erred in admitting several exhibits into evidence
that were admittedly created for purposes of the trial and not
created in the normal course of ordinary business contrary to the
Rules of Evidence 803(6) and did not make findings required by
Rule 1006.
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{¶59} In her fifth assignment of error, Mother argues that the trial court erred
by admitting several exhibits into evidence over the objection of Mother’s trial
counsel. Specifically, Mother argues the trial court erred by admitting State’s
Exhibits 3, 4, and 5 into evidence. State’s Exhibit 3 is a list of the services the
Agency provided to Mother and C.H., State’s Exhibit 4 is a log recording Mother
and C.H.’s visitations, and State Exhibit 5 is a case timeline. (See State’s Exs. 3, 4,
5). These lists were prepared from the extensive casefile maintained by the Agency.
{¶60} “Trial courts have broad discretion in deciding whether to admit
evidence.” In re Za.C., 3d Dist. Allen Nos. 1-13-43 and 1-13-44, 2014-Ohio-979, ¶
35. “A decision to admit or exclude evidence will be upheld absent an abuse of
discretion.” Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787,
¶ 20. An abuse of discretion suggests the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). “Even in the event of an abuse of discretion, a judgment will not be
disturbed unless the abuse affected the substantial rights of the adverse party or is
inconsistent with substantial justice.” Beard at ¶ 20.
{¶61} Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Generally, hearsay statements are excluded from
evidence. However, a hearsay statement may be admissible if it falls within a
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Case No. 14-21-20
recognized exception. One such exception to the exclusion of hearsay statements
are records of a regularly conducted activity as found in Evid.R. 803(6). While
Mother does not contest the propriety of the casefile as a business record maintained
by the Agency, she objects to the summary admitted into evidence claiming a
violation of Evid.R. 1006.
{¶62} Evid.R. 1006 provides as follows:
The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented in
the form of a chart, summary, or calculation. The originals, or
duplicates, shall be made available for examination or copying, or
both, by other parties at a reasonable time and place. The court may
order that they be produced in court.
{¶63} At the permanent-custody hearing, Sexton, the Agency’s ongoing
caseworker assigned to the instant case, testified that she prepared State’s Exhibits
3, 4, and 5 for the purpose of trial. (July 30, 2021 Tr., Vol. II, at 54). Sexton stated
that she created State’s Exhibits 3, 4, and 5 based on the contents of her case file,
which contains approximately 500 pages of records. (Id. at 12-13). She also
testified that the casefile records are based on her personal observations and
knowledge or the observations of other caseworkers in the course of their
employment. (Id. at 33). Sexton further stated that the documents were created
close in time to the events upon which they are based. (Id.).
{¶64} In support of her argument that State’s Exhibits 3, 4, and 5 were
inadmissible, Mother relies on Daniels v. Northcoast Anesthesia Providers, Inc., a
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Case No. 14-21-20
case in which the appellate court held that the trial court erred by admitting evidence
offered pursuant to Evid.R. 1006 on the basis that the information contained in the
summary contained the opinions of the person creating the summary. Daniels v.
Northcoast Anesthesia Providers, Inc., 8th Dist. Cuyahoga No. 105125, 2018-Ohio-
3562, ¶ 32-34. However, here, Mother does not argue that State’s Exhibits 3, 4, and
5 are embellished or inaccurate and did not raise such a concern at the permanent-
custody hearing. Further, our review of State’s Exhibits 3, 4, and 5 indicates that
the documents are summaries containing factual information and do not contain the
author’s opinions. (See State’s Exs. 3, 4, 5).
{¶65} Furthermore, although Mother argues that the trial court erred by
failing to review the documents upon which the summaries were based, the record
does not indicate that Mother requested the trial court to do so. Nor does the record
indicate that the Agency failed to produce the documents. Additionally, Mother
does not argue that the content of the voluminous writings is inadmissible or
inaccurate.
{¶66} Finally, Mother fails to demonstrate that she was prejudiced by the
admission of the contested exhibits. Rather, the record indicates that much of the
information contained in State’s Exhibits 3, 4, and 5 was cumulative of direct
testimony given by witnesses at the hearing based on their personal knowledge.
Notably, the trial court’s findings did not rely on evidence found exclusively in
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State’s Exhibits 3, 4, and 5. Thus, we cannot find that the trial court abused its
discretion in admitting State’s Exhibits 3, 4, and 5.
{¶67} Accordingly, Mother’s fifth assignment of error is overruled.
{¶68} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Union County Court
of Common Pleas, Juvenile Division.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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