In re R.D.

[Cite as In re R.D., 2021-Ohio-3780.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
R.D., et al. : CASE NOS. CA2021-05-017
CA2021-05-018
:
OPINION
: 10/25/2021
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 2018JC05107; 2018JC05108
Denise S. Barone, for appellant.
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
Matthew V. Faris, for Father.
Andrew J. Helmes, guardian ad litem.
S. POWELL, P.J.
{¶ 1} Appellant ("Mother") appeals the decision of the Clermont Court of Common
Pleas, Juvenile Division, granting permanent custody of two of her children, R.D. and S.D.,
Clermont CA2021-05-017 & -018
to appellee, Clermont County Department of Job and Family Services ("CCDJFS"). For the
reasons outlined below, we affirm the juvenile court's decision.
The Parties
{¶ 2} Mother is the biological mother of the two children at issue in this case, R.D.,
born on July 24, 2006, and S.D., born on July 25, 2008. R.D.'s and S.D.'s biological father
("Father") did not appeal the juvenile court's decision granting permanent custody to
CCDJFS and is not a party to this appeal.
Facts and Procedural History
{¶ 3} On August 31, 2018, CCDJFS filed separate complaints alleging R.D. and
S.D. were neglected children. In support of its complaints, CCDJFS alleged that it had
received a report on July 6, 2018 claiming Father's home where R.D. and S.D. lived lacked
"adequate food, running water, and electricity for the family" and that Father was using
"illegal substances, specifically Meth." CCDJFS also alleged that a subsequent
investigation into this report revealed that Father's home was without electricity, but that the
home did "currently have running water." CCDJFS further alleged that this investigation
revealed that Father "was accessing community resources to supply the family with food"
and that Father had tested positive for methamphetamine and amphetamine. CCDJFS
additionally alleged, in pertinent part, the following:
An out of home safety plan was put into place on 7/17/18. Since
7/17/18, [t]hree safety plans have been attempted with the
family but have all disrupted. There are no other safety plan
options at this time. The agency attempted to complete a safety
plan with the children's biological mother, [Mother], but was
unsuccessful due to her being dishonest about who was
residing in her home.
{¶ 4} After receiving CCDJFS' complaint, the juvenile court granted CCDJFS
emergency temporary custody of R.D. and S.D. The juvenile court also appointed a
guardian ad litem for R.D. and S.D.
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{¶ 5} On October 2, 2018, the juvenile court adjudicated R.D. and S.D. as neglected
children. This adjudication was based on Mother's and Father's admission that R.D. and
S.D. were, in fact, neglected. Two weeks later, on October 26, 2018, the juvenile court
issued a dispositional decision granting temporary custody of R.D. and S.D. to CCDJFS.
The record indicates that this decision was based on Mother's and Father's agreement that
CCDJFS should, at that time, receive temporary custody of their children. Mother did not
appeal from the juvenile court's adjudicatory decision finding R.D. and S.D. neglected
children nor did Mother appeal the juvenile court's decision granting temporary custody to
CCDJFS.
{¶ 6} On October 29, 2019 and again on February 25, 2020, the juvenile court
extended CCDJFS' temporary custody of R.D. and S.D. Then, on July 27, 2020, CCDJFS
moved for permanent custody of R.D. and S.D. To support its motions for permanent
custody, CCDJFS alleged that both R.D. and S.D. had been in its temporary custody for 12
or more months of a consecutive 22-month period. CCDJFS also alleged that R.D. and
S.D. could not or should not be placed with either Mother or Father within a reasonable
time. CCDJFS further alleged that R.D.'s and S.D.'s best interests would be served by an
award of permanent custody to CCDJFS.
{¶ 7} On October 16, 2020, a joint hearing on CCDJFS' motions for permanent
custody was held before a juvenile court magistrate. During this hearing, the magistrate
heard testimony from a total of seven witnesses. This included testimony from both Mother
and Father. The magistrate also heard testimony from the current CCDJFS caseworker
assigned to R.D.'s and S.D.'s cases, as well as R.D.'s and S.D.'s guardian ad litem.
{¶ 8} As part of this testimony, it was revealed that S.D. was at that time
hospitalized at an inpatient crisis stabilization unit receiving treatment for a variety of severe
mental health issues, including self-harming behaviors like cutting and head-banging. The
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record indicates that S.D.'s mental health issues stemmed from the trauma caused by the
physical and sexual abuse perpetrated on her by one of her older brothers, L.D.1 The
testimony also revealed that R.D. was likewise receiving treatment at a nearby residential
treatment facility for his own mental health issues stemming from that same physical and
sexual abuse L.D. had inflicted upon S.D. This includes R.D. receiving treatment for
diagnosed post-traumatic stress disorder and disruptive mood dysregulation disorder.
{¶ 9} The testimony further revealed that S.D.'s older brother, L.D., the same older
brother who had physically and sexually abused S.D., was at that time residing in Mother's
home. The record indicates that this was the same home where R.D. and S.D. would also
be living if they were placed into Mother's care. The testimony additionally revealed that
Mother's paramour, the father of Mother's youngest child, J., was also residing at Mother's
home when he was not otherwise staying with friends. This was in addition to the testimony
indicating Mother's paramour has anger management issues, as well as Mother's paramour
having a prior felony drug conviction.
{¶ 10} On November 30, 2020, the magistrate issued two separate decisions
granting permanent custody of R.D. and S.D. to CCDJFS. The following week, on
December 4, 2020, Mother filed objections to the magistrate's decisions. Mother then
supplemented her objections on January 19, 2021. Mother's objections included claims
that the magistrate's decisions granting permanent custody of R.D. and S.D. to CCDJFS
were not in R.D.'s and S.D.'s best interests. Mother also argued the magistrate's decisions
granting permanent custody to CCDJFS were against the manifest weight of the evidence.
{¶ 11} On January 19, 2021, the juvenile court held a hearing on Mother's objections.
1. The record indicates L.D. spent approximately 12-to-18 months at a residential treatment facility where he
received sexual abuse and mental health counseling after he was adjudicated a delinquent child for
committing an act that if charged as an adult would constitute a fourth-degree felony aggravated assault on
the victim, S.D.
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Following this hearing, on April 21, 2021, the juvenile court issued two separate decisions
overruling Mother's objections in their entirety. In so holding, the juvenile court found the
testimony offered by CCDJFS' witnesses in support of its motions for permanent custody
was credible. This included the testimony elicited from the current CCDJFS caseworker
assigned to R.D.'s and S.D.'s cases, as well as R.D.'s and S.D.'s guardian ad litem. The
juvenile court also found that there was "substantial credible evidence" that was both "clear"
and "convincing" that it was in R.D.'s and S.D.'s best interest to grant permanent custody
to CCDJFS rather than return the children to either Mother's or Father's care.
Appeal
{¶ 12} Mother now appeals the juvenile court's decisions granting permanent
custody of R.D. and S.D. to CCDJFS. To support her appeal, Mother raises four
assignments of error for review. For ease of discussion, Mother's second and third
assignments of error will be addressed together.
Permanent Custody Standard of Review
{¶ 13} Before a mother's constitutionally protected liberty interest in the care and
custody of her children may be terminated, the state is required to prove by clear and
convincing evidence that the statutory standards for permanent custody have been met. In
re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.
Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Because the state is required to prove
the statutory standards for permanent custody have been met by clear and convincing
evidence, "[a]n appellate court's review of a juvenile court's decision granting permanent
custody is generally limited to considering whether sufficient credible evidence exists to
support the juvenile court's determination." In re D.P., 12th Dist. Butler No. CA2020-07-
074, 2020-Ohio-6663, ¶ 13, citing In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and
CA2014-06-131, 2014-Ohio-5009, ¶ 6; and In re A.S., 12th Dist. Butler Nos. CA2019-05-
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071, CA2019-05-072, and CA2019-05-073, 2019-Ohio-4127, ¶ 19. "This court will therefore
reverse a juvenile court's decision to grant permanent custody only if there is a sufficient
conflict in the evidence presented." In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and
CA2019-03-002, 2019-Ohio-3143, ¶ 17, citing In re K.A., 12th Dist. Butler No. CA2016-07-
140, 2016-Ohio-7911, ¶ 10. "However, even if the juvenile court's decision is supported by
sufficient evidence, 'an appellate court may nevertheless conclude that the judgment is
against the manifest weight of the evidence.'" In re C.S., 12th Dist. Clinton No. CA2020-
04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No. CA2015-08-164,
2016-Ohio-72, ¶ 19.
{¶ 14} In determining whether a juvenile court's decision to grant a motion for
permanent custody is against the manifest weight of the evidence, an appellate 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 S.M., 12th Dist. Warren Nos. CA2018-08-088 thru
CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. "In weighing the evidence,
there is a presumption in favor of the findings made by the finder of fact and evidence
susceptible to more than one construction will be construed to sustain the verdict and
judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15, citing
In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238,
2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21. "We are especially mindful of this in
permanent custody cases." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-
1000, ¶ 26, citing In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-4911, ¶
13 ("[t]he presumption in weighing the evidence is in favor of the finder of fact, which we
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are especially mindful of in custody cases").
Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER BY
PROCEEDING TO A PERMANENT CUSTODY TRIAL WHEN THE MOTHER HAD NOT
BEEN PROPERLY SERVED WITH A COPY OF THE STATE'S MOTION FOR
PERMANENT CUSTODY.
{¶ 16} In her first assignment of error, Mother argues the juvenile court magistrate
erred by proceeding with the permanent custody hearing even though she was not properly
served with a copy of CCDJFS' motions for permanent custody until the day the permanent
custody hearing was held, October 16, 2020. Mother supports this argument by claiming
this "cannot possibly be deemed good service" and that it represents a clear violation of
R.C. 2151.414(A)(1). We find no merit to Mother's claims.
{¶ 17} Pursuant to R.C. 2151.414(A)(1), upon the filing of a motion for permanent
custody, "the court shall schedule a hearing and give notice of the filing of the motion and
of the hearing, in accordance with section 2151.29 of the Revised Code, to all parties to the
action and to the child's guardian ad litem." The notice requirement found in R.C.
2151.414(A)(1) "ensures the juvenile court has personal jurisdiction over the parents." In
re D.R., 5th Dist. Licking Nos. 2020 CA 00024 and 2020 CA 00025, 2020-Ohio-4025, ¶ 22,
citing In re Kincaid, 4th Dist. Lawrence No. 00CA3, 2000 Ohio App. LEXIS 5132, *10 (Oct.
27, 2000). Whether a parent was properly served as required by R.C. 2151.414(A)(1),
"raises an issue of personal, rather than subject matter jurisdiction." In re A.M., 9th Dist.
Summit No. 26141, 2012-Ohio-1024, ¶ 13. Personal jurisdiction over a party may be
obtained through several different ways. This includes "through proper service of process"
and "by the voluntary appearance of the party * * *." In re S.S., 9th Dist. Wayne No.
10CA0010, 2010-Ohio-6374, ¶ 43, citing Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984).
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"'An objection to personal jurisdiction is waived by a party's failure to assert a challenge to
such jurisdiction at [his or her] first appearance in the case.'" In re K.M., 12th Dist. Butler
No. CA2019-01-015, 2019-Ohio-1833, ¶ 32, quoting In re A.L.W., 11th Dist. Portage Nos.
2011-P-0050 thru 2011-P-0052, 2012-Ohio-1458, ¶ 37.
{¶ 18} Despite Mother's claims, the record indicates that Mother was properly served
with a copy of CCDJFS' motions for permanent custody in accordance with R.C.
2151.414(A)(1) prior to when the permanent custody hearing was held. This includes
service of CCDJFS' motions for permanent custody on Mother by both regular and certified
mail, as well as by personal service on Mother directly. For Mother to now claim that she
was not properly served with copies of CCDJFS' motions for permanent custody until the
day the permanent custody hearing was held is simply not true. However, even if we were
to assume Mother was correct in her assertion that she was not properly served, which she
is not, the record nevertheless establishes that Mother, accompanied by her counsel,
appeared before the magistrate for the permanent custody hearing and fully participated in
the permanent custody hearing regarding both of her children at issue, R.D. and S.D. This
includes Mother testifying at the permanent custody hearing as part of her own case-in-
chief.
{¶ 19} The record also establishes that Mother never objected to the magistrate
going ahead with the permanent custody hearing due to any alleged violation of the notice
requirement found in R.C. 2151.414(A)(1) either before, during, or after the permanent
custody hearing was held. Under these circumstances, and when considering Mother does
not argue that she suffered any resulting prejudice, we find no error in the magistrate's
decision to proceed with permanent custody hearing as scheduled. This is because, as
noted above, Mother waived any challenge to the juvenile court's personal jurisdiction over
her by appearing at, and fully participating in, the permanent custody hearing. See, e.g., In
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re G.D., 9th Dist. Summit No. 27855, 2015-Ohio-4669, ¶ 19 (appellant waived any challenge
to the juvenile court's personal jurisdiction in a permanent custody proceeding where
appellant "did not object to service, appeared at the permanent custody hearing, and fully
participated in the hearing"); see also In re P.O., 11th Dist. Geauga No. 2015-G-0028, 2015-
Ohio-4774, ¶ 23 (by failing to challenge a juvenile court's jurisdiction over appellant's person
in a permanent custody proceeding appellant "forfeited any such challenge on appeal").
Accordingly, because we find no error in the juvenile court magistrate's decision to proceed
with the permanent custody hearing as scheduled, Mother's first assignment of error lacks
merit and is overruled.
Assignment of Error No. 2:
{¶ 20} THE TRIAL COURT ERRED TO THE PREJUDICE OF MOTHER BY
FAILING TO GRANT HER REQUEST TO HAVE THE CHILDREN RETURNED TO HER
CARE.
Assignment of Error No. 3:
{¶ 21} THE TRIAL COURT ERRED AS A MATTER OF LAW BY AWARDING
PERMANENT CUSTODY OF THE CHILDREN TO CLERMONT COUNTY DEPARTMENT
OF JOB AND FAMILY SERVICES.
{¶ 22} In her second and third assignments of error, Mother argues the juvenile court
erred by granting CCDJFS permanent custody of R.D. and S.D. rather than returning R.D.
and S.D. to her care. We disagree.
{¶ 23} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental
rights and award permanent custody of a child to a children services agency if the court
makes findings pursuant to a two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-
248, 2014-Ohio-2580, ¶ 9. The juvenile court must first find the grant of permanent custody
to the agency is in the best interest of the child, utilizing, in part, the factors set forth in R.C.
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2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21.
The juvenile court must then find any of the following apply: (1) the child is abandoned; (2)
the child is orphaned; (3) the child has been in the temporary custody of the agency for at
least 12 months of a consecutive 22-month period; (4) where the preceding three factors
do not apply, the child cannot be placed with either parent within a reasonable time or
should not be placed with either parent; or (5) the child or another child in the custody of
the parent from whose custody the child has been removed, has been adjudicated an
abused, neglected, or dependent child on three separate occasions. In re C.B., 12th Dist.
Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10, citing R.C. 2151.414(B)(1)(a) to (e).
Only one of these findings must be met to satisfy the second prong of the two-part
permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-
3188, ¶ 12.
{¶ 24} Mother does not dispute the juvenile court's decisions finding R.D. and S.D.
had been in the temporary custody of CCDJFS for at least 12 months of a consecutive 22-
month period prior to when CCDJFS filed its two motions for permanent custody. The only
issue, therefore, is whether the juvenile court erred by finding it was in R.D.'s and S.D.'s
best interest to grant permanent custody to CCDJFS.
{¶ 25} When considering the best interest of a child in a permanent custody case,
such as the case here, the juvenile court is required under R.C. 2151.414(D)(1) to consider
certain enumerated factors. In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and
CA2018-04-038, 2018-Ohio-3341, ¶ 32. Pursuant to R.C. 2151.414(D)(1)(a) thru (e), these
factors include, but are not limited to: (1) 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; (2) the wishes of the child, as
expressed directly by the child or through the child's guardian ad litem; (3) the custodial
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history of the child; (4) 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; and (5) whether any of the factors listed in R.C. 2151.414(E)(7) thru (11) apply
in relation to the parents and child. In re J.C., 12th Dist. Brown No. CA2017-11-015, 2018-
Ohio-1687, ¶ 22. "The juvenile court may also consider any other factors it deems relevant
to the child's best interest." In re A.J., 12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-
593, ¶ 24. No one factor is given greater weight than the others. In re S.H., 12th Dist.
Butler Nos. CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 30, citing In re G.W.,
12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 49. "Nor is any one factor
dispositive." In re M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-1000, ¶ 29,
citing In re Bailey, 11th Dist. Geauga No. 2001-G-2337, 2001 Ohio App. LEXIS 3294, *17
(July 20, 2001).
{¶ 26} Within its two separate decisions regarding R.D. and S.D., the juvenile court
made numerous factual findings as it relates to the relevant best interest factors set forth
above. For instance, with respect to R.D.'s and S.D.'s interactions and interrelationships
with those who may significantly affect their lives, the juvenile court found that both R.D.
and S.D. were bonded with Mother, as was Mother bonded with R.D. and S.D. The juvenile
court also found that R.D. believes that he and S.D. need to "stick together due to their
strong ties" as brother and sister. The juvenile court further found that R.D.'s and S.D.'s
maternal grandparents expressed a willingness to provide a home for R.D. and S.D., but
that R.D.'s and S.D.'s maternal grandparents home study failed "due to their self-reported
use of marijuana." The juvenile court additionally found that neither R.D. nor S.D.
developed any attachments while in foster care or their respective residential treatment
facilities.
{¶ 27} Next, in regard to R.D.'s and S.D.'s wishes, the juvenile court found that both
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R.D. and S.D. had expressed their desire to return to Mother's and Father's care, with R.D.'s
preferred choice being Father and S.D.'s preferred choice being Mother. The juvenile court
also found that both R.D. and S.D. would rather be placed with their maternal grandparents
instead of being adopted or returned to foster care if they could not be reunited with Mother
and Father. The juvenile court further found that R.D.'s and S.D.'s guardian ad litem had
recommended that permanent custody be granted to CCDJFS. As stated in the guardian
ad litem's report and recommendation, this is because:
The only circumstance in which this GAL could foresee the
children being safely placed with Mother is if the older sibling
[L.D.] was out of her home. While Mother did indicate that he
will be turning eighteen in December, he will not finish high
school until 2021. It seems unlikely that he would be able to
achieve independent living prior to completion of high school.
{¶ 28} The guardian ad litem also stated:
This GAL's concerns with the children being exposed to the
older sibling is not just a threat of physical harm – they both have
been working through significant mental trauma and still appear
to have a long way to go to process, understand, and cope with
all they have been through to date. Nothing that could
jeopardize that progress they have been able to make to this
point can be seen as in their best interest. It is not clear when,
or if, they can safely be placed in the presence of their older
sibling again.
{¶ 29} Additionally, as it relates to R.D.'s and S.D.'s custodial history, the juvenile
court found R.D. and S.D. had been in the temporary custody of CCDJFS for at least 12
months of a consecutive 22-month period. The juvenile court found that during this time
R.D. and S.D. had been placed in ten different settings since the family first had contact
with CCDJFS. The juvenile court noted that this included several different foster homes
and residential treatment facilities.
{¶ 30} Next, with respect to R.D.'s and S.D.'s need for a legally secure permanent
placement, the juvenile court determined that this could only be achieved with a grant of
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permanent custody to CCDJFS. In so finding, the juvenile court initially stated in regard to
Mother:
The [children's] mother has independent housing, but the
existing occupants make it unrealistic for the [children] to return
to [their] mother's household. The mother rents a three-
bedroom house. The occupants and frequent overnight guests
in her home include the parents' oldest son [L.D.], who sexually
abused S.D.; [L.D.'s girlfriend]; [J.], the mother's three-year-old
daughter, and [B.C.], mother's boyfriend and father of [J.]
{¶ 31} The juvenile court then stated that it had found R.D. was "unsure of how he
would feel being placed back in a home with his oldest brother [L.D.]," whereas "[d]ealing
with all these individuals would undoubtedly be a struggle for S.D." The juvenile court also
stated that Mother had "attempted to assure" the juvenile court that she could provide for
the "safety of all her children if R.D. and S.D. were placed back in her home" given her
confidence that L.D. was "unlikely to reoffend." The juvenile court, however, found Mother's
attitude "appears to minimize the psychological effect it may have on R.D. and S.D." to be
placed back in the same home as L.D. This is because, as the juvenile court noted, R.D.'s
and S.D.'s "mental health needs to be taken as seriously as their physical safety."
{¶ 32} The juvenile court further noted Mother's concern that R.D. and S.D. had been
"in ten different placements since 2018," as well as Mother's argument that "the Agency is
unable to provide a legally secure permanent placement for the children." The juvenile
court, however, found Mother's argument "overlooks the fact that the majority of these
placement have [been] disrupted due to the children's aggressive behavior and their
behavioral/mental health needs," as well as the fact that these needs "developed while [R.D.
and S.D. were] living with [their] family." The juvenile court additionally found it "apparent"
that R.D. and S.D. "will not have the ability to enjoy any consistency unless and until they
receive enough treatment to stabilize their condition[s]." The juvenile court then noted
"[t]reatment for mental health and behavioral issues must be the first priority in order for
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[R.D. and S.D.] to have any possibility of maturing into stable young adults."
{¶ 33} The juvenile court next stated that R.D.'s and S.D.'s serious mental health and
behavioral issues "make it impossible to complete a case plan for [their] reunification within
the two year time frame allowed by statute." The juvenile court explained that this is
because "[i]t is not feasible for [them] to remain in a treatment facility and be returned to the
custody of a parent." (Emphasis sic.) The juvenile court then stated:
Following residential treatment, [they] will need to "step down"
to a therapeutic foster home, which will provide a high level of
care, structure and supervision to fit [their] needs. If custody
was returned to a parent, [R.D. and S.D.] would not have the
benefit of stepping down to a therapeutic foster home. An
abrupt transition straight from a residential facility to mother's
home would not be advisable.
{¶ 34} This was in addition to the juvenile court finding Mother was not then receiving
the mental health treatment that was recommended as a result of Mother's mental health
assessment. The juvenile court then noted that it was suggested that Mother be assessed
again, but that "this was not accomplished prior to trial. Thus, the Court has no way to
ascertain whether the mother is still in need of counseling." The juvenile court noted that
this was particularly troublesome in this case because R.D. and S.D. were going to need
support wherever they were ultimately placed. So, as noted by the juvenile court, "[i]f the
mother is not going to get the mental health assistance she needs, she may very well not
have the ability to provide emotional support for her children."
{¶ 35} The juvenile court also noted that it had "no way of knowing that the mother
will be able to withstand the pressure of having two children with behavioral issues returning
to her home, especially considering the conflict that could arise with other members of the
household," i.e., S.D.'s abuser, L.D., and Mother's paramour. The juvenile court further
noted its concern that Mother had "discontinued her own counseling because she felt it was
inconvenient and ineffective." The juvenile court noted that this "raises doubts" as to
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whether Mother "would continuing counseling for [R.D. and S.D.] if she felt that [R.D.'s and
S.D.'s] counseling was ineffective or inconvenient." The juvenile court then concluded this
factor by stating:
The Court does not take it lightly that the [children prefer] to be
returned to [their] parents. Yet one parent has no home to offer,
and the other has inhabitants that could act as triggers for [the
children]. This does not bode well for stability or consistency.
The environment quite possibly could cause the [children] to
regress into old patterns of behavior. Instead, with therapy and
a more positive environment in the future, [the children] may
mature into * * * responsible member[s] of the community. This
goal cannot be achieved without a grant of permanent custody
to the Agency which has demonstrated its commitment to
providing [the children] with the treatment necessary for [their]
mental and behavioral health.
{¶ 36} Finally, with respect to any of the factors contained in R.C. 2141.414(E)(7)
thru (11), the juvenile court determined that none of these factors applied to the case at bar.
{¶ 37} As noted above, in her second and third assignments of error, Mother argues
the juvenile court erred by granting permanent custody to CCDJFS rather than returning
R.D. and S.D. to her care. To support this argument, Mother claims that she presented
sufficient evidence to indicate R.D. and S.D. "must be returned to her legal custody and
care." Mother also claims that the juvenile court's decisions granting permanent custody to
CCDJFS were "based on insufficient evidence, contrary to their best interests, and contrary
to the weight of the evidence presented." According to Mother, this is because the juvenile
court "minimized the strength" of R.D.'s and S.D.'s bond with her, as well as the efforts that
Mother had made to remain engaged in R.D.'s and S.D.'s lives "despite difficult
circumstances." Therefore, given the "terrible job the agency was doing of taking care of
her precious children," Mother argues that it was error for the juvenile court to grant
permanent custody of R.D. and S.D. to CCDJFS because "she alone can provide a legally
secure placement for the children."
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{¶ 38} Despite Mother's claims, however, we find no error in the juvenile court's
decisions granting permanent custody of R.D. and S.D. to CCDJFS. This holds true even
when considering R.D.'s and S.D.'s strong bond with Mother for "this is but one factor to be
considered when determining the best interest of a child in a permanent custody
proceeding." In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-1586, ¶ 48, citing
In re S.M., 12th Dist. Warren No. CA2018-07-076, 2018-Ohio-4654, ¶ 25 (strong bond
between mother and child is but one factor to be considered when determining the best
interest of a child); In re A.T.-D., 12th Dist. Butler Nos. CA2015-03-059, CA2015-03-060,
and CA2015-04-068, 2015-Ohio-2579, ¶ 30 (clear bond between father, grandmother, and
child is but one factor to consider when determining the best interest of a child); In re S.H.,
12th Dist. Butler Nos. CA2014-12-259 and CA2015-01-008, 2015-Ohio-1763, ¶ 24 (strong
bond between mother, grandmother, and child is but one factor to consider when
determining best interest of a child); In re I.B., 12th Dist. Butler No. CA2014-12-244, 2015-
Ohio-1344, ¶ 20 (strong bond between mother and child is but one factor to consider when
determining the best interest of a child). This same holds true as it relates to Mother's
efforts to remain engaged with R.D.'s and S.D.'s lives for "there is not one element that is
given greater weight than the others." In re D.R., 12th Dist. Butler No. CA2009-01-018,
2009-Ohio-2805, ¶ 14, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶ 39} That is to say, given the record properly before this court, which includes
evidence that Mother may not be willing and/or able to provide the support that R.D. and
S.D. need to cope with their various mental health issues, returning R.D. and S.D. to
Mother's care would an unnecessary gamble with R.D.'s and S.D.'s lives. This is particularly
true here as it relates to S.D. given her troubling history of self-harming behavior, which
includes cutting and head banging. But, as this court has stated previously, "[a] child's life
is not an experiment that can be left to chance." In re G.W. at ¶ 52. That is, stated
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differently, "'[t]he law does not require the court to experiment with a child's welfare to see
if the child will suffer great detriment or harm.'" (Internal brackets omitted.) In re B.C., 12th
Dist. Warren Nos. CA2018-03-024 and CA2018-03-027, 2018-Ohio-2673, ¶ 30, quoting In
re R.S.-G., 4th Dist. Athens No. 15CA2, 2015-Ohio-4245, ¶ 53. The law instead requires
the juvenile court act in a manner that, to the extent possible, serves the best interest of the
child. "'A child's best interests are served by the child being placed in a permanent situation
that fosters growth, stability, and security.'" In re D.E., 12th Dist. Warren Nos. CA2018-03-
035 and CA2018-04-038, 2018-Ohio-3341, ¶ 60, quoting In re Keaton, 4th Dist. Ross Nos.
04CA2785 and 04CA2788, 2004-Ohio-6210, ¶ 61.
{¶ 40} Simply stated, the juvenile court found granting permanent custody of R.D.
and S.D. to CCDJFS gave them the best opportunity to grow and develop into responsible
members of the community. The juvenile court found the same would not be true if R.D.
and S.D. were returned to Mother's care given the other inhabitants living in Mother's home,
L.D. and Mother's paramour, both of whom the juvenile court found could act as "triggers"
that had the potential to cause R.D. and S.D. to regress "into old patterns of behavior." We
find no error in the juvenile court's decision. We also find no error in the juvenile court's
decision finding R.D's and S.D.'s "mental health needs to be taken as seriously as their
physical safety," nor do we find any error in the juvenile court's decision finding that R.D.'s
and S.D.'s "[t]reatment for mental health and behavior health issues must be the first priority
in order for them to have any possibility of maturing into stable young adults." Therefore,
because it is R.D.'s and S.D.'s best interest that is controlling rather than Mother's own
desires, the juvenile court's decisions granting permanent custody of R.D. and S.D. to
CCDJFS was not error. Accordingly, finding no error in the juvenile court's decisions
granting permanent custody of R.D. and S.D. to CCDJFS rather than returning R.D. and
S.D. to Mother's care, Mother's second and third assignments of error lack merit and are
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overruled.
Assignment of Error No. 4:
{¶ 41} HAD TRIAL COUNSEL BEEN EFFECTIVE, HE WOULD HAVE
PERSUADED THE COURT TO DISMISS THE CASE IN ITS ENTIRETY AND AWARD
CUSTODY OF THE CHILDREN TO THE MOTHER.
{¶ 42} In her fourth assignment of error, Mother argues that she received ineffective
assistance of counsel. We disagree.
{¶ 43} Generally, "a claim for ineffective assistance of trial counsel is not a proper
ground on which to reverse the judgment of a lower court in a civil case that does not result
in incarceration in its application." In re T.W., 12th Dist. Warren No. CA2017-06-079, 2017-
Ohio-8268, ¶ 15, citing Rafeld v. Sours, 5th Dist. Ashland No. 14 COA 006, 2014-Ohio-
4242, ¶ 15. There is an exception, however, "for such claims in civil permanent custody
appeals." Id., citing In re Tyas, 12th Dist. Clinton No. CA2002-02-010, 2002-Ohio-6679, ¶
4. That is to say, "[a] parent is entitled to the effective assistance of counsel in cases
involving the involuntary termination of his or her parental rights." In re B.J. & L.J., 12th
Dist. Warren Nos. CA2016-05-036 and CA2016-05-038, 2016-Ohio-7440, ¶ 68. This is
because "parental rights involve a fundamental liberty interest, procedural due process,
which includes the right to effective assistance of counsel * * *." In re Tyas, citing In re
Heston, 129 Ohio App.3d 825, 827 (1st Dist.1998).
{¶ 44} "In determining whether counsel was ineffective in a permanent custody
hearing, a reviewing court must apply the two-tier test of Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052 (1984)." In re C.S., 12th Dist. Warren No. CA2018-07-080, 2018-Ohio-
4786, ¶ 33. The two-tier Strickland test requires the appellant to establish: "(1) that his [or
her] trial counsel's performance was deficient, and (2) that such deficiency prejudiced the
defense to the point of depriving the appellant of a fair trial." In re G.C., 12th Dist. Butler
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Nos. CA2016-12-237 thru CA2016-12-240, 2017-Ohio-4226, ¶ 24, citing Strickland at 687-
688. To satisfy the two-tier test of Strickland, therefore, "[t]he parent must show that
counsel's performance was outside the wide range of professionally competent assistance
and that counsel's deficient performance prejudiced the parent." (Emphasis omitted.) In re
L.J., 12th Dist. Warren No. CA2014-10-124, 2015-Ohio-1567, ¶ 33. "Failure to establish
either element is fatal to the claim." In re D.S., 4th Dist. Pike No. 20CA905, 2020-Ohio-
4794, ¶ 23.
{¶ 45} Mother initially argues she received ineffective assistance of counsel because
her counsel did not advocate against the juvenile court adjudicating R.D. and S.D.
neglected children and instead moved the juvenile court for a finding that R.D. and S.D.
were dependent children. However, as this court stated previously, "challenges involving a
parent's stipulation to a finding of neglect, dependency or abuse cannot be raised at an
appeal from a later permanent custody determination." In re W.F., 12th Dist. Brown No.
CA2014-01-002, 2014-Ohio-2892, ¶ 12. Such a challenge must instead be made from the
juvenile court's adjudicatory decision as that decision, "followed by an award of temporary
custody to a children's services agency," is a final appealable order. In re K.M., 12th Dist.
Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 16. The same is true as it relates to Mother's
argument that her counsel was ineffective for not filing objections to the magistrate's
decision adjudicating R.D. and S.D. neglected children. To hold otherwise would result in
this court issuing an opinion that is, at best, advisory in nature. We decline Mother's
invitation provide such an opinion given that "[i]t is, of course, well settled that this court will
not indulge in advisory opinions." City of N. Canton v. Hutchinson, 75 Ohio St.3d 112, 114
(1996).
{¶ 46} In so holding, we note another well settled principle that "an appeal of an
adjudication order of abuse, dependency, or neglect of a child and the award of temporary
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custody to a children services agency pursuant to R.C. 2151.353(A)(2) must be filed within
30 days of the judgment entry pursuant to App.R. 4(A)." In re H.F., 120 Ohio St.3d 499,
2008-Ohio-6810, ¶ 18. "App.R. 4 governs the timing of appeals and must be carefully
followed because failure to file a timely notice of appeal under App.R 4(A) is a jurisdictional
defect." Id., citing State ex rel. Pendell v. Adams Cty. Bd. of Elections, 40 Ohio St.3d 58,
60 (1988). Therefore, because Mother did not file an appeal from the juvenile court's
adjudicatory decision and temporary custody order granting temporary custody of R.D. and
S.D. to CCDJFS, Mother is now barred from arguing that her counsel provided her with
ineffective assistance of counsel based on counsel's performance at any time prior to when
the juvenile court issued its adjudication decision and dispositional order. See, e.g., In re
W.F. at ¶ 10-13 (appellant's argument alleging "her counsel was ineffective for advising her
to stipulate to W.F.'s dependency" was barred on appeal where appellant did not appeal
from the juvenile court's dependency adjudication and temporary custody order).
Accordingly, Mother's initial ineffective assistance of counsel claims lack merit.
{¶ 47} Mother also argues she received ineffective assistance of counsel because
her counsel did not move to dismiss CCDJFS' motions for permanent custody since she
was not properly served with copies of CCDJFS' motions. However, as discussed more
fully above, the record indicates that Mother was properly served with a copy of CCDJFS'
motion for permanent custody prior to the day the permanent custody was hearing was
held. And, even if we were to assume Mother was correct in her assertion that she was not
properly served, Mother waived any challenge to the juvenile court's personal jurisdiction
over her due to any alleged violation of the notice requirement found in R.C. 2151.414(A)(1)
by appearing at, and fully participating in, the permanent custody hearing. Therefore,
Mother's additional ineffective assistance of counsel claim also lacks merit. Accordingly,
finding no merit to any of Mother's arguments raised within her fourth assignment of error,
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Mother's fourth assignment of error lacks merit and is overruled.
Conclusion
{¶ 48} In light of the foregoing, and finding no merit to any of the arguments Mother
raised within her four assignments of error, the juvenile court's decision granting CCDJFS
permanent custody of two of Mother's children, R.D. and S.D., is affirmed.
{¶ 49} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.
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