In re K.J.

[Cite as In re K.J., 2019-Ohio-123.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: K.J. C.A. No. 29149
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN17-04-000278
DECISION AND JOURNAL ENTRY
Dated: January 16, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated her parental rights to her child K.J., and placed the child
in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”).
This Court affirms.
I.
{¶2} Mother is the biological mother of K.J. (d.o.b. 7/23/09). Father voluntarily
relinquished his parental rights to the child, and he is not a party to this appeal.
{¶3} Mother was the legal custodian of K.J. until Mother was placed on probation for a
criminal offense. Because it was uncertain whether she would ultimately have to serve prison
time for the offense, Mother’s probation officer had her execute a document placing the child in
the temporary custody of Father. Father had physical possession of the child for the three years
preceding her removal from the home.
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{¶4} In April 2017, the Akron Police Department received a call based on numerous
alleged concerns for a welfare check of the child in her home. Father was not at home at the
time, but Mother and her boyfriend were there with the child. The child and her clothing were
dirty, and she was infested with lice. After further finding filth, the lack of kitchen and bathroom
facilities, and growing marijuana in the home, the police took K.J. into protective custody
pursuant to Juv.R. 6. Mother and her boyfriend were charged with child endangering. CSB
obtained an emergency order of temporary custody of the child. At shelter care, both parents
waived their rights to a hearing and stipulated to a finding of probable cause for the continued
removal of the child.
{¶5} CSB filed a complaint, alleging that K.J. was an abused, neglected, and dependent
child. At adjudication, both Mother and Father waived their rights to a hearing. The magistrate
adjudicated the child abused, neglected, and dependent as alleged in the complaint. Neither
parent filed objections. The juvenile court adopted the magistrate’s decision on adjudication.
Thereafter, Mother and Father both waived their rights to a dispositional hearing before the
magistrate and stipulated that K.J. would be placed in the temporary custody of CSB. The
juvenile court adopted the dispositional order without objection. The agency’s case plan was
adopted as the order of the court.
{¶6} At the first review hearing three months later, both parents stipulated that the
child would remain in CSB’s temporary custody. Mother and Father were to have supervised
visitation with K.J. as the parties might agree. The magistrate held two additional review
hearings, maintaining the child in the agency’s temporary custody and the parents’ supervised
visitation, after hearing the testimony of the CSB caseworker.
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{¶7} After the case had pended for eleven months, Father and Mother each filed a
motion for a six-month extension of temporary custody, and CSB filed a motion for permanent
custody. Shortly thereafter, Mother and Father each filed their respective motions for legal
custody. In addition, Mother filed a request for an in camera interview of the child. The juvenile
court granted that request and interviewed the child in chambers with the guardian ad litem
present.
{¶8} Immediately prior to the commencement of the permanent custody hearing,
Father surrendered his parental rights. The hearing proceeded as to the agency’s and Mother’s
motions. At the conclusion of the hearing, the juvenile court issued its judgment, granting CSB’s
motion for permanent custody and terminating Mother’s parental rights. Mother filed a timely
appeal in which she raises three assignments of error for review. This Court addresses some
assignments of error out of order to facilitate review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
GRANTING PERMANENT CUSTODY AS THE TRIAL COURT FAILED TO
COMPLY WITH R.C. 2151.28(L), WHEN IT ISSUED ITS DEPENDENCY
ORDERS.
{¶9} Mother argues that the juvenile court erred by failing to comply with the
requirements of R.C. 2151.28(L) when it adjudicated K.J. a dependent child. This Court
disagrees.
{¶10} Juv.R. 40(D)(3)(b)(iv) provides:
Except for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Juv.R.
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).
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Accordingly, “‘[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s
decision, it may not be raised for the first time on appeal.’” In re C.C.-L., 9th Dist. Summit No.
28666, 2017-Ohio-9296, ¶ 23, quoting Varner v. Varner, 170 Ohio App.3d 448, 2007-Ohio-675,
¶ 22 (9th Dist.). Because Mother did not file objections to the magistrate’s decision adjudicating
K.J. a dependent child, she has forfeited all but plain error on appeal. See Juv.R. 40(D)(3)(b)(iv).
In the criminal context, plain error does not exist unless it can be said that but for
the error, the outcome of the trial would have been different and that reversal is
necessary to prevent a manifest miscarriage of justice. State v. White, 142 Ohio
St.3d 277, 2015-Ohio-492, ¶ 57. The civil plain error standard may be applied
only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging
the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79
Ohio St.3d 116 (1997), syllabus.
(Internal quotations omitted.) In re S.G., 9th Dist. Summit No. 27428, 2015-Ohio-2503, ¶ 11.
{¶11} This Court has not yet determined whether the criminal or civil plain error
standard applies in dependency, neglect, and abuse cases. In re K.C., 9th Dist. Lorain No.
17CA011135, 2017-Ohio-8779, ¶ 29, citing In re S.G. at ¶ 11. As Mother cannot prevail here
under either standard, we decline to make that determination in this case.
{¶12} R.C. 2151.28(L) requires the juvenile court to make certain written findings of
fact and conclusions of law in its judgment when it adjudicates a child to be dependent. Included
in those findings must be “specific findings as to the existence of any danger to the child and any
underlying family problems that are the basis for the court’s determination that the child is a
dependent child.” Id.{¶13} Both Mother and Father waived their rights to an adjudicatory hearing at which
CSB would have had the burden of proving the allegations in the complaint by clear and
convincing evidence. See In re T.C., 9th Dist. Wayne Nos. 18AP0021 and 18AP0022, 2018-
5
Ohio-4369, ¶ 15, citing Juv.R. 29(F) and R.C. 2151.35(A)(1). By waiving their rights to a
hearing, Mother and Father effectively stipulated to a finding of all factual allegations in the
complaint. Assuming without deciding that the juvenile court could not proceed with a
permanent custody hearing in the absence of an adjudication judgment which complied with the
mandates of R.C. 2151.28(L), the allegations in the complaint supported the statutorily required
findings. Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
TERMINATED MOTHER’S PARENTAL RIGHTS AS THE EVIDENCE WAS
NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶14} Mother argues that the juvenile court’s award of permanent custody of K.J. to
CSB was against the manifest weight of the evidence. This Court disagrees.
{¶15} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶16} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
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child or another child of the same parent has been adjudicated abused, neglected, or dependent
three times; or that the child cannot be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest
factors include: the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, the child’s need for permanence and whether that can be achieved
without a grant of permanent custody, and whether any of the factors outlined in R.C.
2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit
Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will
“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. In
this case, Mother limits her challenge to the juvenile court’s determination that CSB satisfied the
first prong of the permanent custody test. Mother does not make any argument regarding the
best interest of the child.
{¶17} In its motion for permanent custody, CSB alleged as its sole first-prong ground
that K.J. could not be placed with her parents within a reasonable time or should not be placed
with her parents pursuant to R.C. 2151.414(B)(1)(a). In support, the agency alleged five
Subsection (E) factors. Because Father voluntarily surrendered his parental rights, we focus
solely on the allegations relevant to Mother. Specifically, CSB alleged that (1) despite
reasonable case planning and diligent efforts by the agency, Mother continuously and repeatedly
failed to substantially remedy the conditions that caused the child’s placement outside the home
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pursuant to R.C. 2151.414(E)(1); (2) Mother has a chronic mental illness and/or chemical
dependency problem that is so severe that Mother is unable to provide the child with an adequate
permanent home at present and, as anticipated, within one year pursuant to R.C. 2151.414(E)(2);
(3) Mother demonstrated a lack of commitment toward the child pursuant to R.C.
2151.414(E)(4); (4) Mother was unwilling to provide for the basic needs of the child or protect
the child from abuse or neglect pursuant to R.C. 2151.414(E)(14); and (5) any other relevant
factor applied pursuant to R.C. 2151.414(E)(16).
{¶18} After the permanent custody hearing, the juvenile court found that CSB had met
its burden of proving that K.J. could not be reunified with Mother within a reasonable time or
that the child should not be returned to Mother. The lower court premised its first-prong
conclusion on findings that Mother had failed to substantially remedy the conditions that led to
the child’s removal, and that Mother continued to suffer from chronic mental health and
chemical dependency issues, the severity of which rendered Mother unable to provide K.J. with
an adequate permanent home in the foreseeable future.
{¶19} R.C. 2151.414(E) provides, in relevant part:
In determining at a hearing held pursuant to division (A) of this section or for the
purposes of division (A)(4) of section 2151.353 of the Revised Code whether a
child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents, the court shall consider all relevant
evidence. If the court determines, by clear and convincing evidence, at a hearing
held pursuant to division (A) of this section or for the purposes of division (A)(4)
of section 2151.353 of the Revised Code that one or more of the following exist
as to each of the child’s parents, the court shall enter a finding that the child
cannot by placed with either parent within a reasonable time or should not be
placed with either parent:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency to
assist the parents to remedy the problems that initially caused the child to be
placed outside the home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be placed outside the
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child’s home. In determining whether the parents have substantially remedied
those conditions, the court shall consider parental utilization of medical,
psychiatric, psychological, and other social and rehabilitative services and
material resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual disability,
physical disability, or chemical dependency of the parent that is so severe that it
makes the parent unable to provide an adequate permanent home for the child at
the present time and, as anticipated, within one year after the court holds the
[permanent custody] hearing * * *[.]
{¶20} Although K.J. was removed from Father’s home, Mother and her boyfriend had
also been living in that home for three months at the time of the child’s removal. Neither Mother
nor her boyfriend was named on the lease, and Mother had not provided a home for the child for
three years. The home was “deplorable,” lacking a kitchen, sink, refrigerator, and working toilet
and bathtub. The inhabitants used a bucket for a toilet. The child was filthy and infested with
lice. She had rarely attended school since Mother joined the household. There was a history of
domestic violence between Father and Mother, with Mother being the physical aggressor. Both
Mother and her boyfriend had threatened home inhabitants with physical violence. Mother
admitted to having diagnosed mental health issues which she addressed, in part, with marijuana.
Mother was growing marijuana in the home. At the time of the child’s removal, there were
pending warrants for Mother’s arrest based on theft and drug paraphernalia charges.
{¶21} CSB established a case plan to help Mother address the issues that hindered her
ability to provide a safe and stable home for K.J. Under the terms of the case plan that the
juvenile court adopted as its order, Mother was required to (1) obtain a chemical dependency
assessment and follow all recommendations for treatment, including attending AA or NA
meetings, counseling, intensive outpatient treatment, inpatient treatment, drug screens, and a
mental health assessment; (2) obtain a psychological/parenting assessment or mental health
9
assessment and follow all treatment recommendations, including attending counseling, additional
testing, anger management counseling, parenting education, and being medication-compliant; (3)
demonstrate the ability to meet her own and the child’s basic needs by maintaining an adequate
income, a home free from hazards, and good family hygiene; and (4) obtain an anger
management assessment and follow all treatment recommendations.
{¶22} Mother argues that CSB failed to meet its obligation to implement reasonable case
planning, i.e., to tailor Mother’s case plan objectives to address the conditions that initially gave
rise to the removal of K.J. from the home. In addition, Mother argues that CSB failed to use
diligent efforts to assist her by failing to allow her adequate time to address her issues.
Specifically, Mother argues that CSB prematurely filed its motion for permanent custody after
Mother had only had eight months to work on her case plan objectives.
R.C. 2151.414(E)(1) requires that children services agencies engage in reasonable
case planning and diligent efforts to remedy the concerns at issue. In addition to
setting appropriate case plan goals for parents engaged in custody actions,
children services agencies must, in good faith, provide services and engage in
efforts that are reasonable calculated to succeed in reunifying parents and their
children. See, e.g., In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-
Ohio-6027, ¶ 23[ and] 33. * * * In addition, it is fundamental that parents must
be afforded a reasonable amount of time to accomplish their goals.
***
Case plans are the tools that children services agencies use to set forth the goals of
parents to allow for the return of children to their parents. In re C.E., 3d Dist.
Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 15. Their central purpose
is to remedy the problems that caused the children’s removal and to accomplish
the reunification of parents and children. In so doing, the agency must take into
consideration the individual circumstances of each case.
In re M.P., 9th Dist. Lorain No. 14CA010678, 2015-Ohio-2226, ¶ 30 and 48.
{¶23} With regard to Mother’s argument that CSB did not properly tailor her case plan
objectives to allow her to remedy the conditions that resulted in the child’s placement outside the
home, this Court has found no objection by Mother below to the juvenile court’s adoption of the
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agency’s case plan and amended case plan. “A party may not object to matters regarding case
plan implementation for the first time on appeal.” In re N.L., 9th Dist. Summit No. 27784, 2015-
Ohio-4165, ¶ 33, citing In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 18.
As Mother failed to challenge her case plan objectives below by objecting to the adoption of the
case plans as the orders of the court, at a time when the juvenile court could have considered her
arguments, we decline to consider them in the first instance. See In re N.L. at ¶ 33, citing In re
H.W., 9th Dist. Summit No. 27730, 2015-Ohio-3018, ¶ 10.
{¶24} As to Mother’s argument that CSB did not use diligent efforts because the agency
did not allow her a reasonable time to accomplish her objectives, this Court disagrees. In
addition to the eight months Mother had to work on remedying the conditions that led to the
removal of the child, she had another four-and-a-half months prior to the commencement of the
permanent custody hearing in which to try to accomplish her objectives. Mother does not claim
that CSB stopped providing services to her after the agency filed its motion for permanent
custody. In fact, the record evidences the ongoing services provided to Mother, as well as the
caseworker’s accommodations to allow Mother to work with providers with whom she had
already established a relationship. Accordingly, CSB facilitated Mother’s participation in
services designed to help her remedy the concerns regarding Mother’s ability to parent the child
appropriately and for a reasonable period of time.
{¶25} Substantively, the clear and convincing evidence adduced at the permanent
custody hearing supported the juvenile court’s finding that Mother continuously failed to
substantially remedy the conditions that caused the child to be placed outside her home. She
does not dispute that she has suffered from mental health issues throughout much of her life.
Mother reported that she was diagnosed with bipolar disorder. She suffers from major
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depression with psychosis and has experienced both auditory and visual hallucinations. The
mental health professionals who worked with Mother reported that she is not always medication-
compliant. For a substantial portion of this case, Mother refused to take her prescribed
medication because she was attempting to become pregnant. Nevertheless, Mother continued to
use marijuana on a regular basis, and was forthright in her assertion that she did not plan to stop
smoking it. Her psychiatrist testified that marijuana use was contraindicated because it
negatively impacted the efficacy of Mother’s prescription medications. Mother’s clinical
psychologist testified that she counseled Mother not to use marijuana because of the likelihood
that it would exacerbate her symptoms of depression and anxiety.
{¶26} Although Mother made efforts to attend appointments and was generally
cooperative with her service providers when she did attend, the testimonial consensus was that
Mother continued to lack insight into her mental health issues, her aggressive behaviors, and the
insensitivity she exhibited in her relationship with K.J. Although Mother attended every
scheduled visitation with the child, K.J. requested that telephone communication between her
and Mother cease because it was too stressful for the child who was afraid that Mother would
call her names or make inappropriate comments to her. The child’s counselor discussed the
severe trauma the child suffered while in her parents’ care, but Mother evidenced little
understanding of the effect that environment had on K.J.
{¶27} Mother self-reported episodes of intense anger to her service providers. She
admitted ongoing anger with the CSB caseworker, who testified that she ceased making home
visits to Mother’s home after Mother threatened her with physical violence. Mother’s clinical
psychologist expressed current concerns regarding Mother’s inability to manage her anger,
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aggression, and mood stability based on the nature of the character pathology associated with
Mother’s personality disorders.
{¶28} Mother’s counselor at Greenleaf Family Center echoed the concerns of the other
mental health professionals. After performing a diagnostic assessment, the counselor determined
that Mother needed to develop appropriate parenting skills, substance use skills, and anger
management skills. Because of Mother’s anxiety and general irritability around other people, the
counselor worked individually with Mother. The counselor testified that it became futile to
attempt to address Mother’s parenting and substance abuse issues when Mother reported that
there were no problems in her relationship with K.J. and that she had no desire to stop using
marijuana. Accordingly, the counselor focused efforts on Mother’s anger issues. Nevertheless,
the counselor reported little success because Mother blamed Father and CSB for any problems.
Moreover, Mother’s boyfriend/fiancé always attended all of Mother’s appointments at her
insistence, even though the counselor’s notes indicated that she told Mother that it would be
helpful to meet with her alone.
{¶29} A CSB social services aide who supervised some of Mother’s visitations with the
child testified regarding some inappropriate behavior by Mother. For example, Mother would
engage in “pretty extensive” tickling of the child. Mother disregarded the child’s pleas that
Mother stop the tickling. In addition, although the agency told Mother to bring reasonably sized,
healthy meals for the child because she was obese, Mother continued to bring heavy, starchy
foods in portions more suitable for a grown man. The aide reported that Mother let the child eat
a piece of cake that was large enough for three adults to share. Mother also engaged in
inappropriate conversations with the child, including telling the child about Mother’s pregnancy
in the early stages and her subsequent miscarriage. Finally, Mother consistently brought her
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boyfriend/fiancé to visitations even though he was not supposed to be there and the child did not
want to interact with him.
{¶30} The CSB caseworker testified that Mother had not made sufficient progress on her
case plan objectives. Mother lived in three or four residences during the case. The caseworker
had not visited Mother’s most recent home due to Mother’s multiple threats of violence against
her, but Mother reported that she had no furniture in the home. Mother continued to live with
her boyfriend/fiancé who she asserted posed no threat to the child despite his extensive criminal
history, including acts of violence; a history of substance abuse; suspected mental health issues;
as well as Mother’s assertion that she would never leave the child alone with her
boyfriend/fiancé, although she refused to explain why not. The child had expressed fear of
Mother’s boyfriend/fiancé based on instances of domestic violence between Mother and the man,
and certain acts by the boyfriend/fiancé that made the child feel uncomfortable. Even though
Mother denied any incidents of domestic violence, she admitted to the caseworker that she sleeps
with a hammer under her pillow and that both she and her boyfriend/fiancé regularly carry
weapons.
{¶31} Mother claimed to have four jobs during the pendency of the case, but she failed
to provide any documentation to the caseworker to substantiate her claim that she was currently
employed. Mother continues to struggle to maintain employment because she becomes easily
frustrated and angry with people.
{¶32} The caseworker concluded that Mother has not complied with her case plan
objectives. Despite attending appointments for services, Mother continues to demonstrate a lack
of insight regarding her mental health and substance abuse issues, and she has not been able to
implement skills to control her anger. The guardian ad litem echoed the concerns of the
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caseworker and other professionals in this case. The guardian acknowledged that, although
Mother had worked very hard on her case plan objectives, Mother had not been able to
demonstrate successful completion of any of them. The guardian opined that, given Mother’s
demonstrated ongoing issues, an extension of temporary custody would not allow Mother to
succeed in substantially remedying the conditions that initially resulted in K.J.’s removal from
her home.
{¶33} Based on clear and convincing evidence establishing ongoing concerns about
Mother’s ability to provide a nurturing, safe, and healthy environment for K.J, notwithstanding
the agency’s reasonable case planning and diligent efforts, Mother failed continuously and
repeatedly to substantially remedy the conditions which caused the child to be placed outside
Mother’s home. See R.C. 2151.414(E)(1). Mother had been receiving mental health services
prior to CSB’s involvement, and the agency allowed her to continue working with some of the
providers with whom she was comfortable. Mother missed some appointments and failed to
follow the recommendations of the professionals when she did attend. Despite the
recommendations of multiple professionals that she stop using marijuana, Mother repeatedly
asserted that she had no intention of doing so. Despite her psychiatrist’s recommendation that
she take her medications as prescribed, Mother routinely failed to comply because she was trying
to become pregnant. Despite her psychological assessment that identified multiple issues for her
to address, Mother denied having any problems with parenting, her relationship with the child,
and substance abuse. Accordingly, her clinical psychologist could not even begin working with
her on those issues. Finally, despite recognizing her tendency to quickly become angry and
aggressive with other people, Mother failed to develop the skills necessary to manage her anger.
Under these circumstances, the juvenile court’s finding that K.J. could not be placed with Mother
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within a reasonable time or should not be placed with Mother was not against the manifest
weight of the evidence. Mother’s third assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
GRANTING PERMANENT CUSTODY BASED, IN PART, UPON AN IN-
CAMERA HEARING WITH THE CHILD IN VIOLATION OF MOTHER’S
DUE PROCESS RIGHT OF CONFRONTATION.
{¶34} Mother argues that the juvenile court erred by relying on information received
during an in camera interview with the child. This Court disagrees.
{¶35} As an initial matter, R.C. 2151.414(D)(1)(b) allows the juvenile court to consider
“[t]he 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[,]” when determining whether an award of
permanent custody would be in the child’s best interest. Mother concedes this point of law.
{¶36} Mother challenges the use of information gleaned from the juvenile court’s
interview with the child on several bases. First, she argues that the court could not rely on that
information to support its first-prong finding that K.J. could not be returned to Mother within a
reasonable time or should not be returned to her. A close reading of the judgment, however,
indicates that the juvenile court did not rely on the child’s statements to substantiate its first-
prong finding. Instead, the juvenile court relied on testimonial evidence of Mother’s failure to
substantially remedy the conditions that caused K.J. to be placed outside the home and Mother’s
severe, chronic mental illness and chemical dependency. The juvenile court’s statement that the
child noted behaviors by Mother that supported the testimony of the various witnesses is merely
anecdotal.
{¶37} Second, Mother argues that the juvenile court embellished the child’s statements
regarding Mother’s behaviors as having been as a result of Mother’s mental health and drug use
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issues. Specifically, the juvenile court wrote: “[K.J.] noted in her in camera interview, the
yelling and agitation that was often expressed by Mother due to her co-occurring mental health
and chemical dependency disorders were disturbing to her and were a reason that she did not
want to return home.” Mother correctly states that the child never referenced Mother’s mental
health or substance abuse issues. This Court, however, does not read the juvenile court’s
statement to mean that K.J. referenced those issues. Instead, we read the court’s statement
merely to indicate that the child witnessed Mother’s frequent loud and agitated behavior, which
the juvenile court, not the child, found to be due to Mother’s mental health and chemical
dependency issues identified by the CSB caseworker and other professionals who had worked
with Mother.
{¶38} Third, Mother argues that the juvenile court violated Mother’s due process right
to confront a witness against her when it “rel[ied] upon the ex parte statements the child made at
the in-camera hearing[.]” (Emphasis in original.) She argues that she should have been
permitted to cross-examine the child. Mother ignores the fact that it was she who requested that
the juvenile court conduct an in camera interview with the child. Mother did not subpoena the
child to testify at the hearing. The juvenile court did not place the child under oath, but rather
engaged in informal conversation with her, as is typical of an in camera interview. Unlike the
right of an accused in a criminal prosecution to confront witnesses against him or her, the
Confrontation Clause of the Sixth Amendment to the United States Constitution has not been
extended to allow parents to cross-examine their children during in camera interviews in
permanent custody cases. The very nature of the in camera interview is non-adversarial.
Moreover, CSB moved the court to reschedule the child’s in camera interview to a day that the
parents would not be at the courthouse, so that K.J. would not have to risk seeing Mother and
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Father, thereby allowing the child to speak freely without fear of repercussion by her parents.
Mother did not object to the agency’s request. Neither did she object to CSB’s proposed
questions for the in camera interview or submit her own questions to the juvenile court.
Accordingly, Mother cannot now be heard to complain that the juvenile court considered
statements by the child that Mother requested the court to elicit informally without her input.
Mother’s second assignment of error is overruled.
III.
{¶39} Mother’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
18
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
ANTHONY COSTELLO, Attorney at Law, for Appellee.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney,
TONY PAXTON, Guardian ad Litem.