[Cite as In re D.B.,
2016-Ohio-4990.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: D.B. C.A. Nos. 16CA010901
16CA010903
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 14JC41994
DECISION AND JOURNAL ENTRY
Dated: July 18, 2016
SCHAFER, Judge.
{¶1} Appellants, Bobbie Z. (“Mother”) and Steven B. (“Father”), appeal from a
judgment of the Lorain County Court of Common Pleas, Juvenile Division, that terminated their
parental rights to their minor child and placed him in the permanent custody of Lorain County
Children Services (“LCCS”). This Court affirms.
I.
{¶2} Mother and Father are the biological parents of D.B., born June 19, 2012. The
parents have older children who were removed from their custody several years ago and placed
in the legal custody of paternal relatives, but those children are not parties to this appeal.
{¶3} D.B. was removed from the custody of his parents on April 21, 2014. LCCS filed
a complaint to allege that he was a neglected and dependent child because Mother had given
birth to another child and had tested positive for cocaine during one prenatal visit and after the
child was born. The newborn child, who died shortly after birth because of complications from a
2
blood disorder that apparently was not connected to Mother’s drug use, is not a party to this
appeal.
{¶4} At the adjudicatory hearing, both parents stipulated that D.B. was a neglected and
dependent child because: Mother had a long history of illegal drug use and mental health
problems, which had contributed to her losing custody of her three older children; both parents
had recently tested positive for illegal drugs; and neither parent had cooperated with LCCS to
prevent the removal of D.B. from the home. In fact, the parents conceded that they had
threatened to leave the state to avoid LCCS again becoming involved with their family.
{¶5} The parents also agreed that D.B. should be placed in the temporary custody of
LCCS and that the case plan should be adopted as an order of the court. Among other things, the
case plan required that both parents obtain mental health and substance abuse assessments,
follow any treatment recommendations, and sign releases of information with service providers
to enable LCCS to monitor their progress on the reunification goals of the case plan.
{¶6} Following a review hearing on March 19, 2015, the trial court found that Mother
and Father had both tested positive for heroin during August 2014, refused to submit to drug
screening for the next two months, and each tested positive for illegal drugs when they resumed
drug testing in November 2014. Because the parents began cooperating with LCCS and tested
negative for drugs for the next few months, however, the trial court extended temporary custody.
{¶7} Shortly after the trial court extended temporary custody, LCCS again became
concerned that neither parent was making progress on the reunification goals of the case plan.
Both parents exhibited hostility toward LCCS and began denying that they had substance abuse
problems. They insisted that LCCS and other agencies that had conducted drug testing had
tainted their samples and/or substituted them with positive drug screens from other people.
3
Mother stopped engaging in drug and mental health treatment and Father revoked all information
releases so LCCS was unable to determine whether he was complying with the case plan.
{¶8} On June 25, 2015, LCCS moved for permanent custody of D.B. The parents
alternatively requested that the trial court extend temporary custody for another six months
and/or place D.B. in the legal custody of a maternal aunt. During the months leading up to the
hearing, the parents’ uncooperative and hostile behavior toward LCCS continued to intensify.
After a visit with D.B. during September 2015, the case plan was amended to terminate their
visits with D.B. because both parents had threatened to harm LCCS staff.
{¶9} Following a hearing on the alternate dispositional motions less than one month
later, the trial court terminated parental rights and placed D.B. in the permanent custody of
LCCS. Mother and Father separately appealed and their appeals were later consolidated.
Mother raises one assignment of error and Father raises five, which will be consolidated and/or
rearranged to facilitate review. This Court will focus on Father’s challenges to the admission of
evidence before those pertaining to whether the trial court properly weighed the evidence
admitted at the hearing.
II.
FATHER’S ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN SOLICITING EVIDENCE OF AND
RELYING UPON HISTORICAL CONCERNS OF THE AGENCY IN CASES
INVOLVING OTHER CHILDREN OF MOTHER AND FATHER WHO WERE
PLACED WITH RELATIVES AS LEGAL CUSTODIANS IN A PRIOR CASE.
FATHER’S ASSIGNMENT OF ERROR III
FATHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
FATHER’S COUNSEL FAILED TO OBJECT TO HEARSAY IN THE FORM
OF DRUG SCREEN RESULTS AND HEARSAY CONCERNING WHAT ONE
OF FATHER’S TREATING PHYSICIANS TOLD THE CASEWORKER.
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FATHER’S ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT RELIED
UPON HEARSAY TESTIMONY IN THE FORM OF DRUG SCREEN
RESULTS ATTRIBUTED TO FATHER.
{¶10} These three assignments of error will be addressed together because they are
closely related. Father argues that the trial court committed reversible error by considering
certain testimony of the caseworker and the guardian ad litem. Father did not raise objections to
any of this testimony at the hearing, but argues that the admission of some of the testimony
constituted plain error and/or that his trial counsel was ineffective for failing to object to its
admission.
{¶11} To establish a claim of ineffective assistance of counsel, Father must demonstrate
that his trial counsel’s performance was deficient and that the deficient performance prejudiced
his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, Father
must show that there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.
Id. at 694.
{¶12} The standard of review for plain error is similar to the standard for reviewing a
claim of ineffective assistance of counsel, although plain error requires more certain proof of
prejudice to the appellant. While ineffectiveness requires proof of a reasonable probability that
the trial result would have been different but for the error, plain error under the criminal standard
requires proof that the trial result clearly would have been otherwise. State v. Murphy, 91 Ohio
St.3d 516, 559 (2001) (Cook, J, concurring). The civil plain error standard requires the
demonstration of an even greater level of error, as it must be one that rises to the level of
challenging the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson,
79
Ohio St.3d 116 (1997), syllabus. This Court has not determined which is the appropriate plain
5
error standard to apply in cases involving the termination of parental rights and it need not do so
now. See In re D.S., 9th Dist. Summit No. 24619, 2009-Ohio-3167, ¶ 10.
{¶13} Father’s assigned errors focus on testimony of the caseworker and the guardian ad
litem that he used illegal drugs during this case and the prior cases involving his older children.
He argues that the testimony was inadmissible hearsay because neither witness had firsthand
knowledge that Father had used drugs, but instead relied on the results of drug testing performed
by others.
{¶14} Although Mother stipulated to the admission of her drug screen results, Father did
not. Father argues that, because he testified that he never used illegal drugs, refused to allow
documentary evidence of his drugs screens into evidence, and neither the caseworker nor the
guardian ad litem had firsthand knowledge that he had, in fact, testified positive for any illegal
drugs, the trial court had no evidence before it that he had used illegal drugs during this or the
prior case.
{¶15} Even if Father could demonstrate that the caseworker and guardian ad litem
improperly testified about his drug use, he has failed to demonstrate that the outcome of the
hearing would have been different without their testimony. Although Father refused to stipulate
to the documentary results of his drug screens at the time of the permanent custody hearing, he
had already allowed the trial court to make factual findings about his illegal drug use at prior
court hearings.
{¶16} For example, the trial court record reflects that, at adjudication and disposition,
both parents stipulated that D.B. was a neglected and dependent child because, among other
reasons, each parent had recently tested positive for illegal drugs. The trial court adopted those
factual findings by the magistrate, without any objection by either parent or an appeal from the
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adjudicatory and dispositional judgment. Because no objections were filed, no transcript of the
review hearing was prepared, so this Court must presume that those findings were proper and
cannot review them for plain error. See In re D.T., 9th Dist. Lorain No. 13CA010451, 2014-
Ohio-2332, ¶ 24; Juv.R. 40(D)(3)(b)(iv).
{¶17} During March 2015, the magistrate issued a decision after the annual review
hearing, in which her factual findings included that each parent had tested positive for heroin in
November 2014 and had refused to submit to any drug testing for the next two months. After
restarting drug testing in November 2014, each parent tested positive for THC and oxycodone.
The trial court adopted the decision of the magistrate and neither parent filed objections to the
magistrate’s decision. Because there is no transcript of the review hearing in the record, this
Court must again presume that the findings about Father’s illegal drug use were correct. See id.
{¶18} Father has failed to demonstrate that the outcome of the permanent custody
hearing would have been different without the brief testimony of the caseworker and the
guardian ad litem about his illegal drug use. Consequently, Father’s second, third, and fourth
assignments of error are overruled.
MOTHER’S ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
TERMINATING [MOTHER’S] PARENTAL RIGHTS BY GRANTING
PERMANENT CUSTODY OF D.B. TO [LCCS] WHEN THE TRIAL COURT’S
JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
FATHER’S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FAILING TO GRANT LEGAL CUSTODY
TO MATERNAL AUNT [OF] D.B., OR AN EXTENSION OF TIME BY
WHICH [LCCS] COULD CONSIDER MATERNAL AUNT.
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FATHER’S ASSIGNMENT OF ERROR V
THE TRIAL COURT’S DETERMINATION THAT PERMANENT CUSTODY
WAS IN D.B’S BEST INTERESTS WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, CONSTITUTED AN ABUSE OF
DISCRETION AND PLAIN ERROR, AND VIOLATED FATHER’S RIGHTS
TO DUE PROCESS AND EQUAL PROTECTION UNDER THE U.S. AND
OHIO CONSTITUTIONS.
{¶19} Next, both parents argue that the trial court’s permanent custody decision was not
supported by the evidence. Before a juvenile court may terminate parental rights and award
permanent custody of children to a proper moving agency it must find clear and convincing
evidence of both prongs of the permanent custody test: (1) that the children are abandoned,
orphaned, have been in the temporary custody of the agency for at least 12 months of a
consecutive 22-month period, or that the children cannot be placed with either parent within a
reasonable time or should not 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 children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996). The trial court found
that LCCS satisfied the first prong of the test because D.B. had been in its temporary custody for
more than 12 of the prior 22 months at the time LCCS moved for permanent custody and neither
parent challenges that finding.1
{¶20} Because the parents do not dispute that the trial court’s “12 of 22” finding was
supported by the evidence, they focus their arguments on the trial court’s finding that permanent
1
Although Mother asserts that the trial court was also required to find that D.B. could not
be returned to his parents’ custody under one of the factors enumerated in R.C. 2151.414(E), she
has misinterpreted the language of R.C. 2151.414(B)(1) that “any” of several alternate grounds
will satisfy the first prong of the permanent custody test. See, e.g., In re A.H., 9th Dist. Lorain
No. 13CA010454, 2014-Ohio-552, ¶ 8-9.
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custody was in the best interest of D.B. Father also asserts that the trial court should have
instead placed the child in the legal custody of the aunt or granted a six-month extension of
temporary custody. The trial court must conduct a best interest analysis to determine the
appropriate disposition for a child.2 If permanent custody was in the best interest of D.B., the
alternative dispositions of placing the child in the aunt’s legal custody or of extending temporary
custody were not. See In re S.P., 9th Dist. Summit No. 27138, 2014-Ohio-1211, ¶ 10, citing In
re I.A., 9th Dist. Summit No. 26642,
2013-Ohio-360, ¶ 10.
{¶21} We agree with the trial court that LCCS demonstrated by clear and convincing
evidence that permanent custody was in the best interest of D.B. When determining the child’s
best interest under R.C. 2151.414(D), the juvenile court must consider all relevant factors,
including the interaction and interrelationships of the child, his wishes, the custodial history of
the child, and his need for permanence in his life. See In re R.G., 9th Dist. Summit Nos. 24834,
24850, 2009-Ohio-6284, ¶ 11. Although the trial court is also required to consider any relevant
factors under R.C. 2151.414(E)(7) through (11), none of those factors applied to the facts of this
case. See
id.
{¶22} Witnesses agreed that Mother and D.B. loved each other and that they usually
interacted well together. Father, on the other hand, would often sit in the corner of the room and
not interact with D.B. until he was prompted to. Moreover, while D.B. was placed outside his
parents’ custody for more than one year, the parents’ interaction with him never progressed
beyond weekly, supervised visits because they did not stabilize their mental health or substance
2
Moreover, the trial court would have authority to extend temporary custody only if it
also found that both parents had made “significant progress” on the case plan and that there was
reasonable cause to believe that D.B. would be reunified with her or otherwise permanently
placed during the extension period. R.C. 2151.415(D)(1).
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abuse problems. Although each had engaged in some treatment during this case, by the time of
the hearing, both Mother and Father insisted that they did not have substance abuse or mental
health problems and that they did not need treatment.
{¶23} Less than one month before the permanent custody hearing, the parents’ visits
with D.B. were terminated. Mother admitted during her testimony that, during their last visit
with D.B., she became anxious and angry about something that someone said, so she started
screaming and threw a pop can. In her words, “it just flew out of my hand.” Mother explained
that LCCS staff deliberately “pushes” her “buttons” to trigger her anxiety and depression and
that she could not control her reactions.
{¶24} Several witnesses testified about Mother’s unstable mental health and her
tendency to be calm one moment and then have a “meltdown” and become aggressive and
agitated. LCCS was particularly concerned that Mother was not involved in consistent mental
health treatment at the time of the hearing.
{¶25} Mother testified that she had been involved in mental health treatment off and on
since she was a teenager and that she had been diagnosed with bipolar disorder, depression,
anxiety, and attention deficit hyperactivity disorder. She first testified that she had stabilized her
mental health but, after becoming emotionally distraught and taking a break during her
testimony, she conceded that her mental health was not stable at that time.
{¶26} LCCS also presented evidence that the parents’ drug use and refusal to seek
treatment posed an ongoing threat to D.B. Despite their prior agreements on the record that they
had repeatedly tested positive for illegal drugs during this case, Mother and Father each insisted
that they did not abuse drugs during this case. Mother testified that, although she had used
cocaine in the past, she had been sober since 2009. Also, despite her stipulation to the admission
10
of her drug tests during this case, Mother testified that the drug samples had been tampered with
and/or that “[t]hose are not my tests.” Father similarly testified that he had never used cocaine or
any other illegal drug during this case and that “[e]very drug screen you’ve given me is not mine.
I want you to prove it is.” Because he claimed that LCCS was lying about him, Father stopped
submitting to drug testing and revoked all of his information releases.
{¶27} D.B. was only three years old at the time of the hearing, so the guardian ad litem
spoke on his behalf. The guardian ad litem opined that permanent custody was in D.B.’s best
interest because the parents continued to test positive for illegal drugs, yet they denied that they
had drug problems. She also expressed concern about the effects of each parent’s unstable
mental health on their ability to care for their child.
{¶28} By the time of the hearing, D.B. had been living outside his parents’ custody in
temporary placements for more than a year, close to half of his young life, and was in need of a
legally secure permanent placement. During that time, his parents had made little progress on
the reunification goals of the case plan and they did not dispute that they were unprepared to
provide D.B. with a secure home.
{¶29} Father argues that the trial court should have instead placed D.B. in the legal
custody of a maternal aunt. The trial court heard testimony that Mother and the aunt had been
estranged for approximately six years after an incident of domestic violence between the two.
The aunt testified that she only recently began speaking to Mother again and that she had not
been aware of the prior case involving Mother’s older children because she and Mother were not
in contact at that time.
{¶30} The aunt had learned about this case only two weeks before the permanent
custody hearing when Mother asked her to seek custody of D.B. The aunt had no established
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relationship with D.B., she did not visit him during this case, and she had not gone through any
screening to enable LCCS to determine whether she could provide D.B. with an appropriate
home. The aunt repeatedly suggested during her testimony that, because she was a blood
relative, she should not be required to prove to LCCS or the court that she was qualified to
provide a suitable home for D.B.
{¶31} Given the evidence before the trial court, the parents have failed to demonstrate
any error in the trial court’s conclusion that permanent custody to LCCS, not legal custody to the
aunt, was in the best interest of D.B. Mother’s assignment of error and Father’s first and fifth
assignments of error are overruled.
III.
{¶32} The parents’ assignments of error are overruled. The judgment of the Lorain
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 Lorain, 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
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JULIE A. SCHAFER
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.
ROBERT CABRERA, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting
Attorney, for Appellee.
LISA COREY, Guardian ad litem.
