[Cite as In re C.H.,
2020-Ohio-716.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
IN RE:
C.H., CASE NO. 10-19-10
NEGLECTED/DEPENDENT CHILD.
OPINION
[TYLER H. - APPELLANT]
IN RE:
T.H., CASE NO. 10-19-11
NEGLECTED/DEPENDENT CHILD.
OPINION
[TYLER H. - APPELLANT]
IN RE:
C.H., CASE NO. 10-19-12
NEGLECTED/DEPENDENT CHILD.
OPINION
[TIFFANY T. - APPELLANT]
IN RE:
T.H., CASE NO. 10-19-13
NEGLECTED/DEPENDENT CHILD.
OPINION
[TIFFANY T. - APPELLANT]
Case Nos. 10-19-10, 11, 12, 13
Appeals from Mercer County Common Pleas Court
Juvenile Division
Trial Court Nos. 32019002 and 32019003
Judgments Affirmed
Date of Decision: March 2, 2020
APPEARANCES:
Peter Van Arsdel for Appellant Tiffany T.
James A. Tesno and Erin M. Abels for Appellant Tyler H.
Andrew J. Hinders for Appellee
SHAW, P.J.,
{¶1} Mother-appellant, Tiffany T. (“Tiffany”), and Father-appellant, Tyler
H. (“Tyler”), bring these appeals from the June 26, 2019 judgments of the Mercer
County Common Pleas Court, Juvenile Division, granting permanent custody of the
parties’ two children, C.H. and T.H., to the Mercer County Department of Job and
Family Services (“MCDJFS”). On appeal, both Tiffany and Tyler argue that service
of the permanent custody motions was defective and that MCDJFS did not establish
by clear and convincing evidence that granting permanent custody of the children
to MCDJFS was in the children’s best interests. Tyler makes additional arguments
in his appeal, contending that he received ineffective assistance of counsel when he
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Case Nos. 10-19-10, 11, 12, 13
was “misinformed” regarding the final hearing, that the trial court erred by failing
to sua sponte continue the final hearing, and that the trial court erred by “denying”
Tyler’s motion for relief from judgment.
Background
{¶2} Tiffany is the mother of two children, C.H., born in August of 2016 and
T.H., born in August of 2017. Genetic testing conducted during the pendency of
this case revealed that Tyler was the father of both C.H. and T.H.
{¶3} On May 21, 2018, Tiffany and Tyler were arrested in Mercer County
on outstanding warrants. According to the record, Tiffany, Tyler, and the children
were homeless at the time and Tiffany tested positive for illegal drug use.
{¶4} Complaints were filed in Mercer County Juvenile Court case numbers
32018044 and 32018045 regarding the children.1 As a result of those cases, C.H.
and T.H. were found to be neglected and dependent children, and on July 24, 2018,
they were placed in the temporary custody of MCDJFS.
{¶5} The record indicates that Tiffany and Tyler had no contact with the
children after August 21, 2018. There was no visitation between them, and there is
no indication that Tiffany or Tyler attempted to visit their children.
1
These older case files, which are not the subjects of this appeal, are not included in our record.
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Case Nos. 10-19-10, 11, 12, 13
{¶6} On January 8, 2019, new complaints were filed in Mercer County
Juvenile Court cases 32019002 and 32019003 alleging that C.H. and T.H. were
neglected or dependent children.2
{¶7} Also on January 8, 2019, MCDJFS filed a “Motion for Service by
Publication” pursuant to Juv.R. 16 and R.C. 2151.29. MCDJFS alleged that service
of the complaint could not be completed by mail or personal service. Attached to
the motion was an affidavit, indicating, inter alia, that MCDJFS, the GAL, and
counsel for Tiffany and Tyler had no contact with Tiffany or Tyler and that Tiffany’s
and Tyler’s whereabouts were unknown. The affidavit further stated that the last
known address for Tiffany and Tyler was the Mercer County jail, but they were no
longer incarcerated.
{¶8} The trial court found that service by publication was appropriate in this
matter, and service by publication was then made in “The Daily Standard,” a
newspaper of general circulation throughout Mercer County.
{¶9} On January 11, 2019, a GAL was appointed for the children.
{¶10} Based on entries included in the record, Tiffany and Tyler were
brought into the Mercer County Common Pleas Court, Juvenile Division, on
January 11, 2018, found to be indigent, and attorneys were appointed to each
individually.
2
The complaint regarding T.H. was also served on Dylan Turner and he was originally a party to the case,
but once it was learned that C.H. was actually Tyler’s child, Dylan was dismissed as a party.
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Case Nos. 10-19-10, 11, 12, 13
{¶11} On January 29, 2019, an initial hearing was held on the complaints for
dependency and neglect. Counsel for each parent was present, but neither parent
attended the hearing. At that time, the trial court determined that service had been
made upon Tiffany and Tyler by publication. Afterward, the parents’ attorneys
waived reading of the complaints and entered denials to the allegations on behalf of
their clients.
{¶12} On February 5, 2019, the matter proceeded to an adjudication hearing.
At the hearing, counsel for both parents were again present and the parents were
again absent. The trial court asked the attorneys about the absence of their clients
and Tiffany’s attorney stated that she had spoken with Tiffany that day for the first
time in a “significant time.” Tiffany’s attorney further informed the trial court that
Tiffany stated she was presently in Mendon, Ohio, and that Tiffany wanted her
children returned to her. However, Tiffany told her attorney that she would not be
attending the adjudication hearing and that she was attempting to obtain admission
to a treatment facility in Florida. Tyler’s attorney indicated that he had contact with
Tyler that day as well, and that Tyler provided similar information to Tiffany. The
attorneys for Tiffany and Tyler made a general objection to proceeding with the
adjudication hearing in the absence of the parents.
{¶13} Despite the objections from the parties’ attorneys, and the absence of
the parents, the trial court proceeded with the adjudication hearing. Following the
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evidence presented at the hearing, C.H. and T.H. were found to be dependent and
neglected children.3 An entry reflecting this finding was filed February 22, 2019.
{¶14} On March 6, 2019, the matter proceeded to a dispositional hearing.
Tiffany and Tyler were present at this hearing, along with their attorneys, the GAL,
and the assistant prosecutor representing MCDJFS. At the hearing, the trial court
found that MCDJFS had made reasonable efforts to prevent the removal of the
children, to eliminate removal, or to make it possible for the children to return
home.4 The trial court then found that it was in the children’s best interest that the
children continued to reside apart from the parents. The trial court found that neither
parent had cooperated with MCDJFS in this matter, and that there was no suitable
relative placement. MCDJFS was granted temporary custody of the children.5
{¶15} On May 13, 2019, MCDJFS filed motions for permanent custody of
the children arguing, inter alia, that the parents had demonstrated a lack of
commitment toward the children by failing to regularly support, visit, or
communicate with the children. In addition, MCDJFS argued that the parents had
not provided a permanent home for the children. The permanent custody motions
3
No transcript from this hearing was produced.
4
No transcript from this hearing was produced.
5
In addition to the dispositional orders, at that time, Tyler was ordered to undergo paternity testing along
with Dylan Turner, who was listed on the birth certificate of T.H. as that child’s father. As a result of the
testing, Tyler was determined to be the natural father, and Dylan was excluded as the potential father. A
hearing was held on April 30, 2019, officially establishing Tyler as the father of both children. The record
seems to reflect both parents being present for this hearing.
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Case Nos. 10-19-10, 11, 12, 13
requested service to be made upon Tiffany and Tyler at 222 Sycamore Street,
Kenton, Ohio, 43326, Lot 13, Salisbury Park.
{¶16} On May 23, 2019, a deputy sheriff filed a notice that he was “unable
to locate lot#” and could not serve Tiffany and Tyler with the permanent custody
motions.
{¶17} MCDJFS then filed a “Motion for Service by Publication” pursuant to
Juv.R. 16 and R.C. 2151.29. The motion contended that Tiffany and Tyler could
not be served by personal service or by mail. Attached to the motion was an
affidavit stating that Tyler and Tiffany had personally provided their last known
address as “Lot 13, Salisbury Park, Kenton, Ohio 43326,” but Tyler and Tiffany
could not be located there. In addition, according to the affidavit, a caseworker for
the children had been in contact with a Kenton City Police Officer who could not
locate Tiffany and Tyler at the Salisbury Park address when the officer looked for
them on an unrelated matter.
{¶18} On May 24, 2019, the trial court reviewed the motion for service by
publication and concluded, upon review of the affidavit and the file in this matter,
service by publication was appropriate. Service was ordered to be published in The
Daily Standard, a newspaper of general circulation throughout Mercer county, on
May 25, 2019. In addition, the trial court ordered the parties’ attorneys to be served
with a copy of the summons. The service by publication was made as requested.
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{¶19} Just prior to the hearing on the motion for permanent custody, the GAL
filed a written report and recommendation. The GAL stated that despite numerous
attempts at contacting and interviewing Tiffany and Tyler, the GAL was unable to
do so. The GAL’s report stated that the current whereabouts of the parents were
unknown, and that the parents’ interactions with their children had been essentially
nonexistent in this case. The GAL recommended that permanent custody be granted
to MCDJFS.
{¶20} On June 4, 2019, the matter proceeded to a hearing on the permanent
custody motions. Counsel for Tiffany and counsel for Tyler were present for the
hearing, but neither parent was present. The trial court delayed the start of the
hearing to see if the parents would arrive and asked the bailiff to search the hallways
of the courthouse, but the parents did not appear. The trial court then inquired
regarding the whereabouts of the children’s parents, and the following conversation
transpired.
[TIFFANY’S ATTORNEY]: Thank you, Your Honor.
The last time we were here in court, [Tiffany] was present.
She indicated to me she was residing at the Salisbury Park camp
ground on Site 13. Though, she could not receive mail there, she
did get (inaudibles) address for mail that to a location she’s not
residing at to receive mail.
I have received mail back. We’ve also sent to her old address
as well just in case it was getting forwarded. Received that back.
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I have not had any contact with my client since the last court
date even though she was requested to make contact with me so
we could arrange to prepare for today and I have received no
contact whatsoever, Your Honor, so I do not have a location of my
client.
THE COURT: All right. Thank you very much.
[Tyler’s counsel], same question on [Tyler]. Do you know
where he is?
TYLER’S ATTORNEY: Thank you, Your Honor.
I did speak with him on the phone today and he said that he
was at the camp ground, that he gave me a second address there
that he was (inaudibles) mailing address only and he said he
would not be able to make it here, they have no transportation.
THE COURT: Did he have knowledge of when this would be?
[TYLER’S ATTORNEY]: He said from the last hearing at which
he was attending he knew about the hearing today, yes.
THE COURT: But he hasn’t reached out to you or been in
contact with you?
[TYLER’S ATTORNEY]: Other than the phone call when he
called me back, no.
THE COURT: He just called you (inaudibles). When was his last
contact with you, was that yesterday?
[TYLER’s ATTORNEY]: I believe it was this morning.
THE COURT: This morning? On the day of the hearing?
[TYLER’S ATTORNEY]: Yes.
THE COURT: He hasn’t contacted you at all till today?
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[TYLER’S ATTORNEY]: No.
THE COURT: Okay. The court will also note.
[TIFFANY’S ATTORNEY]: Your Honor, if I may?
THE COURT: Yes, please.
[TIFFANY’S ATTORNEY]: Our clients do reside together, at
least the last I knew from information I have had, so if his client
is unable to have transportation, I would believe that my client
would not have transportation either, so as noted previously, she
was here at the last hearing so she was aware of this hearing.
THE COURT: The court will also note there was notice by
publication to both parents. The court will also note that the
parents know where the courthouse is, they appear to have been
aware of the date and they … [had their attorneys’ contact
information].
(June 4, 2019, Tr. at 6-10).
{¶21} After these preliminary matters regarding the parents’ whereabouts
were discussed, the matter proceeded to a hearing on the permanent custody motion.
{¶22} Heidi Duhamel, a caseworker for MCDJFS, provided testimony at the
hearing that C.H. and T.H. were in agency custody and that they were placed with
the agency on May 21, 2018. She testified that a case plan was developed to support
reunification, which contained eight primary issues for the parents to address. These
issues included, inter alia, that the parents undertake drug and alcohol assessments,
that the parents remain drug free, that the parents secure housing, that the parents
provide the address of their home, that the parents secure employment, and that the
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parents take parenting classes. Duhamel stated that the parents had made no
progress whatsoever on their case plan, that they had not engaged in any services or
conducted any drug screens. Duhamel testified that the parents’ contact with
MCDJFS had been very limited, at best.
{¶23} In addition, Duhamel testified that the parents only had three
visitations with the children since MCDJFS had taken custody of them. Those three
visitations were all in August of 2018, specifically, August 2, 2018, August 14,
2018, and August 21, 2018. As of the date of the final hearing, the parents had gone
approximately ten months without any contact with their children. Duhamel
testified that the children were currently in a position to be adopted if the agency
was granted permanent custody.
{¶24} Duhamel was asked on cross-examination if, to her knowledge, Tyler
and Tiffany were aware that MCDJFS was seeking permanent custody. Duhamel
testified that she had spoken about the permanent custody matter with Tiffany and
Tyler on more than one occasion including over the phone and at the last court
hearing on April 30, 2019.6 Duhamel testified that she “assume[d]” the parents were
aware of the importance of the hearing as she had informed the parents that
MCDJFS was “going forward with the request for permanent custody.” (Tr. at 21).
After Duhamel’s testimony, MCDJFS rested its case.
6
The hearing on April 30, 2019, affirmatively established paternity. No transcript from this hearing was
produced.
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Case Nos. 10-19-10, 11, 12, 13
{¶25} Tiffany’s attorney called no witnesses. Tyler’s attorney also did not
call any witnesses; however, he made the following statement.
I might say I did speak with my client today or yesterday I’m in
the midst of writing up a GAL report on another case and he
asked me about this hearing and whether it was for permanent
custody. (Inaudibles) equivocal answer about whether it was for
permanent custody or not. I need to be honest with the court
about that at this point.
I’m satisfied from the statement of the Job and Family Services
worker that they knew it was permanent custody. They might
have gotten an ambiguous answer from me over the phone,
however.
(Tr. at 22-23).
{¶26} The trial court responded to Tyler’s attorney by asking him if Tyler
was present for the April 30, 2019 hearing, and if the permanent custody hearing
was set that day, and Tyler’s attorney responded in the affirmative to both
questions.7
{¶27} The GAL then gave a statement that the parents had done nothing up
to this point, that the parents had scheduled appointments/interviews with the GAL
on three separate occasions and that they did not show up for those appointments or
even call to say that they were unavailable. The GAL stated that it was in the
children’s best interests that permanent custody be granted to MCDJFS.
7
It might have been generally mentioned that the permanent custody motion would be filed but it had not
even been filed at the time of the April 30, 2019 hearing. However, we have no transcript from the hearing
so we do not know what was discussed or stated.
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Case Nos. 10-19-10, 11, 12, 13
{¶28} The trial court then made a ruling on the record, indicating that there
was very little testimony provided because nothing had been done by the parents in
this case. However, the trial court ultimately found that it was in the best interests
of the children for permanent custody to be granted to MCDJFS.
{¶29} Judgment entries reflecting the trial court’s determination regarding
permanent custody were filed June 26, 2019. The judgment entries found by clear
and convincing evidence “that the child[ren] cannot be reunited with the parents
within a reasonable time. … [B]oth parents have failed to support the child[ren]
and have failed to maintain a stable residence or employment. They have made
minimal to no efforts to participate in services Ordered by the Court in a Case Plan
… [a]nd, the parents last visited with the child[ren] in August of 2018.”
(32019002 Doc. No. 40). The trial court found that the permanent custody motion
should be granted with respect to R.C. 2151.414(E), and that under R.C.
2151.414(D), it was in the children’s best interests for permanent custody to be
granted to the agency, particularly due to their need for permanency and the
potential for adoption.
{¶30} On July 24, 2019, Tiffany filed motions for relief from judgment under
Civ.R. 60(B). Tiffany argued that MCDJFS had not provided adequate resources in
this matter and that MCDJFS did not look into kinship placement. In addition, she
claimed she misunderstood the nature of permanent custody as explained by her
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attorney, and that she missed mailings due to not checking or picking up her mail
regularly. However, Tiffany’s motion and the accompanying affidavit stated that
Tiffany was “verbally and in writing notified” by her attorney concerning the
permanent custody hearing scheduled June 4, 2019.
{¶31} On July 25, 2019, Tyler also filed motions for relief from judgment
stating that his attorney mistakenly told him that the permanent custody hearing was
actually an initial hearing on “the refiling of the Complaint” and that the issue of
permanent custody was not being heard at that time. Tyler further stated that he had
moved from Kenton to Coldwater, that he had acquired a job, that he was drug-free,
and that he was ready to pursue the case plan. Similar to Tiffany, he also alleged
that MCDJFS had not adequately provided resources in this matter and MCDJFS
had not adequately sought kinship placement. He also claimed that MCDJFS failed
to complete routine “home” visits.
{¶32} Notably, despite Tyler’s claims in the affidavit he signed and filed July
25, 2019, which accompanied his motion for relief from judgment, he filed another
affidavit that same day seeking to avoid paying court costs or a deposit. That second
affidavit stated that until recently Tyler was “homeless,” and that he was “currently
unemployed.” (32019002, Doc. No. 45).
{¶33} On July 25, 2019, before the trial court had any opportunity to address
the motions for relief from judgment, Tyler filed appeals from June 26, 2019,
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judgment entries granting permanent custody of the children to MCDJFS. Tyler
asserted the following assignments of error for our review.
Tyler’s Assignment of Error No. 1
The trial court erred in entering final judgment against appellant
because service of process was defective.
Tyler’s Assignment of Error No. 2
Appellant was denied his right to effective assistance of counsel
when he was misinformed of the type of hearing.
Tyler’s Assignment of Error No. 3
The trial court erred when it granted permanent custody to the
Mercer County Department of Job and Family Services because
the State did not meet its burden of proof by clear and convincing
evidence.
Tyler’s Assignment of Error No. 4
The trial court erred by failing to sua sponte continue the
permanent custody hearing.
Tyler’s Assignment of Error No. 5
The trial court abused its discretion when it denied appellant’s
motion for relief from judgment.
{¶34} On July 26, 2019, Tiffany filed her own appeals challenging the trial
court’s permanent custody awards to MCDJFS. She asserts the following
assignments of error for our review.
Tiffany’s Assignment of Error No. 1
The trial court erred in entering final judgment against Appellant
because service of process was defective.
Tiffany’s Assignment of Error No. 2
The trial court erred when it granted permanent custody to the
Mercer County Department of Job and Family Services because
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the Department did not meet its burden of proof by clear and
convincing evidence.
{¶35} Where appellants’ assignments of error overlap, we elect to address
them together.8
Tyler’s First Assignment of Error;
Tiffany’s First Assignment of Error
{¶36} In Tyler’s first assignment of error, and in Tiffany’s first assignment
of error, they argue that service of the permanent custody motions was defective.
Specifically, they claim that the MCDJFS did not exercise “reasonable diligence”
in attempting to notify them of the permanent custody motions and the final hearing.
In addition, they argue the notice in the service by publication failed to include their
last known address and the street address of the courthouse as required under Juv.R.
16(A).
Standard of Review
{¶37} We recognize that the right to parent one’s child is a fundamental right.
In re C.F., 113 Ohio St.3d 73,
2007-Ohio-1104, ¶28. This fundamental right is
protected by the Due Process Clause in the United States Constitution and by
Section 16, Article I of the Ohio Constitution. In re K.J., 10th Dist. Franklin No.
15AP-21,
2015-Ohio-2244, ¶ 10, citing In re Hockstok,
98 Ohio St.3d 238, 2002-
Ohio-7208, ¶ 16. Due process requires both notice and an opportunity to be heard.
8
Where Tyler and Tiffany are being addressed together, we will refer to them as “appellants.”
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Case Nos. 10-19-10, 11, 12, 13
In re Thompkins, 115 Ohio St.3d 409,
2007-Ohio-5238, ¶ 13. A valid court
judgment requires both proper service under the applicable Ohio rules and adequate
notice under the Due Process Clause. In re J.T., 4th Dist. Jackson No. 18CA9, 2019-
Ohio-465, ¶ 31.
{¶38} Despite the procedural importance of due process before terminating
parental rights and responsibilities, “[a] parent’s natural rights … are subject to
balancing, and ultimately subordinated to, the ultimate welfare of a child. As a
result, although a parent has a constitutionally protected right to raise his or her
child, the right may be terminated when necessary for the best interest of the child.”
In re K.J., supra, at ¶ 10, citing In re S.W., 10th Dist. Franklin No. 05AP-1368,
2006-Ohio-2958, ¶ 7, citing In re Cunningham, 59 Ohio St.2s 100, 106 (1979)
(“[p]arental interests must be subordinated to the child’s interest in determining an
appropriate disposition of any petition to terminate parental rights.”).
Analysis
{¶39} Pursuant to R.C. 2151.414(A)(1), when an agency files 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[.]” Revised Code 2151.29 requires service to be made by delivering a copy
to the person summoned or by leaving a copy at the person’s usual place of
residence. If such service is impracticable, service can be made by registered or
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Case Nos. 10-19-10, 11, 12, 13
certified mail, subject to some conditions. In addition, service can be made by
publication in a newspaper of “general circulation throughout the county” when it
has been established by affidavit that the person to be served cannot be found or that
the person’s address cannot be ascertained. Pursuant to R.C. 2151.29,
Whenever it appears by affidavit that after reasonable effort the
person to be served with summons cannot be found or the
person’s post-office address ascertained, whether the person is
within or without a state, the clerk shall publish such summons
once in a newspaper of general circulation throughout the county.
The summons shall state the substance and the time and place of
the hearing, which shall be held at least one week later than the
date of publication. A copy of the summons and the complaint,
indictment, or information shall be sent by registered or certified
mail to the last known address of the person summoned unless it
is shown by affidavit that a reasonable effort has been made,
without success, to obtain such address.
A copy of the advertisement, the summons, and the complaint,
indictment, or information, accompanied by the certificate of the
clerk that such publication has been made and that the summons
and the complaint, indictment, or information have been mailed
as required by this section, is sufficient evidence of publication
and mailing. When a period of one week from the time of
publication has elapsed, the juvenile court shall have full
jurisdiction to deal with such child as provided by sections
2151.01 to 2151.99 of the Revised Code.
{¶40} Juvenile Rule 16(A) also provides some guidelines for service by
publication when the residence of a party is unknown and cannot be ascertained
with reasonable diligence. It reads, in pertinent part, “[t]he publication shall contain
the name and address of the court, the case number, the name of the first party on
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Case Nos. 10-19-10, 11, 12, 13
each side, and the name and last known address, if any, of the person or persons
whose residence is unknown.” Juv.R. 16(A).
{¶41} In this case, appellants were arrested on approximately May 21, 2018,
on outstanding warrants. At that time their children were removed from their care.
The record seems to indicate that appellants spent some time incarcerated after their
arrest. The only address for appellants contained in the record after appellants’
release from incarceration was at a campground, specifically 222 Sycamore Street,
Kenton, Ohio, 43326: Lot 13, Salisbury Park.
{¶42} When MCDJFS filed its motions for permanent custody, service was
requested to be made on appellants at the campground—their last known address.
A deputy sheriff attempted to serve the motions by personal service but was
“[u]nable to locate lot number.” (32019003, Doc. No. 31).
{¶43} After the deputy sheriff was unable to serve the appellants, MCDJFS
filed a motion for service by publication. The motion was accompanied by an
affidavit, which stated that the current address of the appellants was unknown, and
that it could not be ascertained with reasonable diligence. The affidavit included a
background of the case, stating that Tiffany and Tyler had provided no valid address
to the police, to MCDJFS, or the Mercer County Child Support Enforcement
Agency. In addition, the affidavit stated that separate from the attempted service of
the permanent custody motion, a Kenton City Police Officer had tried to locate
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Tiffany and Tyler at the Salisbury Park address on an unrelated matter and the
officer told a caseworker that he was unable to locate them there.
{¶44} The trial court granted MCDJFS’s motion and service was made by
publication. It read as follows.
IN THE COMMON PLEAS COURT OF MERCER COUNTY,
OHIO JUVENILE DIVISION
IN THE MATTER OF: T.H. an alleged neglected/dependent child.
Case No. 32019003.9
NOTICE BY PUBLICATION
(O.R.C. 2151.29)
To: Tiffany Renee Hammond and Tyler Hammond, parents of
T.H., D.O.B. 8/15/2017.
The Mercer County Department of Job and Family Services has
filed a Motion for Permanent Custody regarding the child, T.H.,
D.O.B. 8/15/2017, in the above captioned case. The motion requests
that Permanent Custody of the child be granted to the Mercer County
Department of Job and Family Services.
Tiffany Renee Hammond, Tyler Hammond and the unknown
father of the child10 are to be personally present in the Mercer County
Juvenile Court, Mercer County Courthouse, Celina, Ohio, at 2:30
P.M. on June 4, 2019. Should they fail to appear at that time they may
lose valuable rights with regard to the child. His attention is directed
to the following notice.
NOTICE
Notice to all parties: Each party to this proceeding has the right
to be represented by counsel, to be appointed by the Court in the event
that the party is unable to afford counsel. Any party desiring legal
assistance in this matter should contact Penny Nieport, Deputy Clerk
of the Mercer County Juvenile Court, at 419-586-2418.
9
The publication for C.H. read the same, only it referenced case number 32019002, and cited C.H.’s date of
birth as 8/3/2016. (32019002 Doc. No. 38).
10
At this point, Tyler had been established as the father of both children, so it is unclear why “unknown
father of the child” is stated. Regardless, Tyler is specifically listed.
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(32019003 Doc. No. 38).
{¶45} After the notice by publication was posted, the matter proceeded to a
final hearing wherein appellants did not attend, though their attorneys were present.
Tiffany’s counsel stated that she had not been in contact with Tiffany, though she
had told Tiffany of the need to prepare for the hearing. Tyler’s counsel said that
Tyler had contacted him either the morning of the hearing or the day before. Tyler’s
counsel relayed that Tyler said he did not have transportation to the hearing.
However, Tyler’s counsel did state that he may have not given an accurate answer
regarding whether the scheduled hearing was for permanent custody. Nevertheless,
the MCDJFS caseworker testified at the final hearing that the appellants were at the
most recent hearing and that they had been informed of the pending permanent
custody motion. The trial court also found that there was service by publication.
{¶46} On appeal, appellants argue that they did not receive proper notice of
the permanent custody hearing. They argue that MCDJFS did not exercise
reasonable diligence in attempting to obtain their whereabouts and that the notice
by publication itself was deficient.
{¶47} Dealing first with the exercise of reasonable diligence, MCDJFS
attempted personal service on appellants at their last known address, which was the
address appellants had provided. Throughout the pendency of this case, appellants
regularly did not maintain contact with their attorneys or with MCDJFS. Similarly,
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Case Nos. 10-19-10, 11, 12, 13
they did not regularly attend court hearings for their children. MCDJFS attempted
personal service at the only place appellants were known to be or known to
potentially receive mail. When the appellants could not be located there, the
MCDJFS attempted service by publication. Notably, at least one Ohio Appellate
Court has held, “The court does not delve into an examination of whether reasonable
diligence was in fact exercised unless the defendant attempts to challenge the
presumption in the trial court.” In re D.S., 9th Dist. Summit No. 24619, 2009-Ohio-
3167, ¶ 17, citing Sizemore v. Smith, 6 Ohio St. 3d 330, 331 (1983).
{¶48} Appellants seem to suggest that more diligence should have been
exercised by MCDJFS, despite the fact that in a later-filed affidavit Tyler stated that
“until recently” he was homeless. As he and Tiffany were apparently staying
together, that would make them both homeless, and likely unreachable by mail or
personal service absent their specific notification of where they could be reached.
{¶49} According to the State’s knowledge, and that of Tiffany and Tyler’s
attorneys, the last known address for appellants was at the campground. Tiffany’s
attorney was not even able to reach Tiffany by mail at that address. Reasonable
diligence depends on the particular facts and circumstances of each case. See In re
Thompkins, 115 Ohio St.3d 409,
2007-Ohio-5238, ¶ 25. We fail to see how in these
circumstances the MCDJFS did not exercise reasonable diligence when neither
Tiffany nor Tyler have presented any indication in support of their challenge as to
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Case Nos. 10-19-10, 11, 12, 13
how MCDJFS could have possibly obtained Tiffany’s and Tyler’s whereabouts.
Thus the argument that MCDJFS failed to exercise reasonable diligence is not well-
taken.
{¶50} Next, appellants argue that the notice by publication in this matter was
insufficient. They argue that the notice failed to list the specific address of the
courthouse and that it failed to list the appellants’ last known address.
{¶51} Contrary to appellants’ argument, the notice did specifically state that
the permanent custody motion would be heard at the “Mercer County Juvenile
Court, Mercer County, Courthouse, Celina, Ohio.” While the notice may not have
given the specific street address of the courthouse, appellants had been to hearings
in this case before, albeit sparingly, and were aware of where the courthouse was.
Thus the failure to include the street address of the courthouse does not constitute
insufficient notice in this matter, particularly where the specific court, date, and time
were all mentioned.
{¶52} Nevertheless, it is true that the publication did not include a last known
address for the appellants, but it is unclear to what extent the appellants had an
address at all to be included in the notice given their apparent periods of
homelessness. However, even assuming a failure to include the last known address
was an issue, an affidavit later-filed by Tiffany stated that she was aware of the
permanent custody hearing, specifically the date and the time of it. She just claimed
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Case Nos. 10-19-10, 11, 12, 13
she may have misunderstood the nature of the hearing. Tiffany’s affidavit indicates
that she, and presumably Tyler since they were together, had actual notice of the
hearing. Moreover, Tyler’s conversation with his attorney on the day before the
final hearing or the day of the final hearing would further indicate his actual notice
of the hearing.
{¶53} Tyler and Tiffany may contend that they did not understand what the
hearing was for, but they had repeatedly not participated in this case since
essentially its inception. They showed little interest in their children or in
proceeding with their case plan. Now they seek to be protected by claiming a due
process violation when it is largely through their own actions that it was difficult to
serve them or get them to come into court. The appellants were aware that this case
was ongoing and the MCDJFS caseworker testified that she had informed them of
the permanent custody hearing. These circumstances essentially call into question
the credibility of their current claims on appeal as to insufficient notice of the
existence or nature of the permanent custody hearing. Cases cited by the appellant
in support of the proposition that service was defective here such as In re Cooper,
8th Dist. Cuyahoga No. 79899, 2002 WL 568192 (April 11, 2002), and In re J.T.,
4th Dist. Jackson No. 18CA9,
2019-Ohio-465, are factually distinguishable.11 After
reviewing the record, we cannot find that the notice in this matter was insufficient.
11
In fact, J.T. itself has no precedential value as two judges concurred in judgment only in the matter.
Moreover, reasonable diligence is inherently a factual matter depending on the circumstances in each case.
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Case Nos. 10-19-10, 11, 12, 13
For all of these reasons, Tyler’s first assignment of error is overruled, and Tiffany’s
first assignment of error is overruled.
Tyler’s Second Assignment of Error
{¶54} In Tyler’s second assignment of error, he argues that his trial counsel
was ineffective for “misinforming” him regarding the permanent custody hearing.
Standard of Review
{¶55} In permanent custody proceedings we apply the same test for
ineffective assistance of counsel that we do in criminal cases. In re J.E., 3d Dist.
Marion No. 9-17-07, 2017-Ohio-8272, ¶ 22, citing In re E.C., 3d Dist. Hancock No.
5-15-01,
2015-Ohio-2211, ¶ 40, citing In re Heston,
129 Ohio App.3d 825, 827 (1st
Dist.1998). In order to demonstrate ineffective assistance of trial counsel, an
appellant must first show that the trial counsel’s performance fell below an objective
standard of reasonableness. In re E.C. at ¶ 41, citing Strickland v. Washington,
466
U.S. 668, 687,
104 S.Ct. 2052 (1984) and State v. Bradley,
42 Ohio St.3d 136, 137
(1989). Then, appellant must demonstrate that but-for trial counsel’s errors, the
result of the proceeding would have been different.
Id. The appellant bears the
burden of establishing ineffective assistance of trial counsel and, in order to do so,
must overcome the strong presumption that licensed attorneys provided competent
representation.
Id., citing State v. Calhoun,
86 Ohio St.3d 279, 289 (1995).
Analysis
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Case Nos. 10-19-10, 11, 12, 13
{¶56} Tyler argues that his counsel was ineffective for misinforming him
regarding the final hearing, for failing to request a continuance, and for failing to
object to the GAL’s report. In analyzing Tyler’s arguments, we must begin by again
emphasizing that throughout these proceedings Tyler failed to participate and
regularly contact his attorney. He did not seem concerned enough to check on the
status of his case until either the day before the final permanent custody hearing or
the day of the permanent custody hearing.
{¶57} However, it is true that Tyler’s attorney informed the trial court that
he may have given an “equivocal” response regarding the purpose of the June 4,
2019 hearing when Tyler and his attorney spoke on the day of the hearing or the day
prior. While trial counsel certainly should have given Tyler a full and accurate
response, in order to find ineffective counsel, we would have to determine that
Tyler’s equivocation was erroneous and prejudicial.
{¶58} Notably, even with Tyler’s attorney’s statement at the permanent
custody hearing, it is difficult to find error when we do not even know exactly what
was said between Tyler and his attorney in their phone conversation. The attorney
was not even sure what he had said. We do know that Tyler was aware that a hearing
was occurring. In fact, the caseworker for MCDJFS testified that she believed Tyler
and Tiffany were aware of the hearing on the pending permanent custody motion.
Tiffany’s later-filed affidavit stated that she was aware of the hearing before it
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Case Nos. 10-19-10, 11, 12, 13
occurred. Thus the record establishes that any alleged confusion claimed by Tyler
now could just as easily been as a result of his own lack of interest in this matter
expressed through his lack of participation in any of the case plan and his inability
to maintain contact with his attorney or with MCDJFS.
{¶59} However, even if we accepted that Tyler’s attorney’s equivocation
was deficient, Tyler would have to demonstrate that it was prejudicial. There is no
indication that Tyler was going to be at the hearing regardless of its importance as
he stated at the eleventh hour that he had no transportation. Moreover, given Tyler’s
overall lack of participation in this matter and his seeming disinterest in his children
until after permanent custody had been awarded to MCDJFS, we find it hard to see
how any other outcome would have been possible here. Therefore, for all of these
reasons Tyler’s second assignment of error is overruled.
Tyler’s Third Assignment of Error;
Tiffany’s Second Assignment of Error
{¶60} In Tyler’s third assignment of error, and in Tiffany’s second
assignment of error, they argue that the trial court’s judgment regarding permanent
custody was not supported by clear and convincing evidence. Specifically, Tyler
argues that MCDJFS failed to prove that any of the factors under R.C.
2151.414(B)(1) were met, and that the evidence presented did not establish that it
was in the children’s best interests to grant permanent custody of the children to
MCDJFS. Tiffany summarily argues that the testimony of the sole witness for
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Case Nos. 10-19-10, 11, 12, 13
MCDJFS was not sufficient to meet the “clear and convincing” burden of proof.
Stated differently, Tiffany argues that the decision was against the weight of the
evidence.
Standard of Review
{¶61} An award of permanent custody must be based on clear and
convincing evidence. R.C. 2151.414(B)(1). Clear and convincing evidence is
evidence “which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469 (1954). “Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of
proof.” Id. at 477. If some competent, credible evidence going to all the essential
elements of the case supports the trial court’s judgment, an appellate court must
affirm the judgment and not substitute its judgment for that of the trial
court. (Emphasis sic) C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d 279
(1978).
{¶62} Moreover, issues relating to the credibility of witnesses and the weight
to be given to the evidence are primarily for the trier of fact. Seasons Coal v.
Cleveland, 10 Ohio St.3d 77, 80 (1984). Deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evidence in
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Case Nos. 10-19-10, 11, 12, 13
the parties’ demeanor and attitude that does not translate to the record
well.” (Emphasis sic) Davis v. Flickinger, 77 Ohio St.3d 415, 419 (1997).
{¶63} Furthermore, “ ‘[w]eight of the evidence concerns “the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the [trier-of-fact] that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.” ’ ” Eastley v. Volkman,
132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 12, quoting State v. Thompkins,
78 Ohio
St.3d 380, 387 (1997), quoting Black’s Law Dictionary 1594 (6th ed. 1990).
{¶64} When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court “
‘ “weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the [judgment] must be reversed and a new trial ordered.” ’ ” Eastley at ¶ 20,
quoting Tewarson v. Simon, 9th Dist. Lorain No. 99CA007526,
141 Ohio App.3d
103, 115 (2001), quoting Thompkins,
78 Ohio St.3d at 387 quoting State v.
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Case Nos. 10-19-10, 11, 12, 13
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); accord In re Pittman, 9th Dist.
Summit No. 20894,
2002-Ohio-2208, ¶¶ 23–24.
Controlling Statutory Authority
{¶65} Revised Code 2151.414 sets forth the guidelines a trial court must
follow when determining a motion for permanent custody. Revised Code
2151.414(A)(1) mandates that the trial court schedule a hearing and provide notice
upon the filing of a motion for permanent custody of a child by a public children
services agency.
{¶66} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court
to grant permanent custody of a child to a public agency if the court determines, by
clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the
child is not abandoned or orphaned, and the child cannot be placed with either of
the child’s parents within a reasonable time or should not be placed with the child’s
parents; (b) the child is abandoned; (c) the child is orphaned and there are no
relatives of the child who are able to take permanent custody; or (d) the child has
been in the temporary custody of one or more public children services agencies or
private child placement agencies for twelve or more months of a consecutive
twenty-two-month period. Notably, “the findings under R.C. 2151.414(B)(1)(a)
and R.C. 2151.414(B)(1)(d) are alternative findings, [and] each is independently
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Case Nos. 10-19-10, 11, 12, 13
sufficient to use as a basis to grant the Agency’s motion for permanent custody.” In
re M.R., 3d Dist. Defiance No. 4–12–18, 2013–Ohio–1302, ¶ 80.
{¶67} In sum, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial
court will usually determine whether one of the four circumstances delineated in
R.C. 2151.414(B)(1)(a) through (d) is present before proceeding to a determination
regarding the best interest of the child.
{¶68} Once the trial court proceeds to a determination regarding the best
interests of the children, R.C. 2151.414(D) contains factors for a trial court to
consider. It reads as follows.
(D)(1) In determining the best interest of a child at a hearing held
pursuant to division (A) of this section or for the purposes of
division (A)(4) or (5) of section 2151.353 or division (C) of section
2151.415 of the Revised Code, the court shall consider all relevant
factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-ofhome providers, and any other person who may significantly
affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the
maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period,
or the child has been in the temporary custody of one or more
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Case Nos. 10-19-10, 11, 12, 13
public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month
period and, as described in division (D)(1) of section 2151.413 of
the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(d) The child’s need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
Analysis
{¶69} After the evidence was presented at the permanent custody hearing,
the trial court determined that the children had been in the custody of MCDJFS for
“I believe it was a year, if not just a little bit longer, and the parents have done
nothing affirmative to remedy any of the situations that led to the removal of the
children.” (Tr. at 26). The trial court continued, “Actually, the parents haven’t done
anything. They have not seen their children for ten months.” (Id.) The trial court
did not state at that time which factor under R.C. 2151.414(B)(1) it was applying,
but the trial court did explicitly find that an award of permanent custody to MCDJFS
was in the children’s best interests.
{¶70} The trial court’s subsequently-filed judgment entries expanded on the
trial court’s reasoning articulated at the permanent custody hearing, and clarified its
ruling. In its entries, the trial court found that the children
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Case Nos. 10-19-10, 11, 12, 13
cannot be reunited with the parents within a reasonable time. …
* [B]oth parents have failed to support the child[ren] and have
failed to maintain a stable residence or employment. They have
made minimal to no efforts to participate in services Ordered by
the Court in a Case Plan to remedy the cause for removal of the
child from the home. And, the parents last visited with the
child[ren] in August of 2018.
Therefore, the motion should be granted with respect to
Section 2151.414(E).
The Court finds, pursuant to Section 2151.414(D) that [] it is
in the best interests of the child[ren] that permanent custody be
awarded to the Department. The Court finds that there is a
suitable [] adoptive home presently being explored, this being the
foster home of the child[ren] since [] removal from the parent[s].
(32019003, Doc. No. 40).
{¶71} On appeal, appellants claim that the trial court erroneously “found” at
the permanent custody hearing that the children had been in the temporary custody
of the agency for over a year and attempted to “correct” this error in the judgment
entries by expanding on its holding and finding that the children could not or should
not be placed with their parents within a reasonable time pursuant to R.C.
2151.414(B)(1)(a). Thus appellants claim that at the permanent custody hearing the
trial court made a finding under R.C. 2151.414(B)(1)(d), but changed that finding
to R.C. 2151.414(B)(1)(a) in its judgment entry.
{¶72} At the outset, we note that at the permanent custody hearing, the trial
court did not affirmatively state whether it was entering a finding under R.C.
2151.414(B)(1)(d) or (B)(1)(a) (or even (B)(1)(b) for that matter, which relates to
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Case Nos. 10-19-10, 11, 12, 13
abandonment). Nevertheless, we emphasize that, as previously stated, findings
under R.C. 2151.414(B)(1)(a) and (B)(1)(d) are independent. As long as one was
satisfied the other need not be.
{¶73} Regarding appellants’ arguments as to the trial court’s statements at
the permanent custody hearing, it does appear that the trial court may have
miscalculated the length of time the children were officially in the temporary
custody of MCDJFS based on the date when temporary custody statutorily began.
This is likely because the children were in the care of MCDJFS dating from the
arrest of the appellants on May 21, 2018, but not officially in the temporary custody
of MCDJFS until July of 2018.12 If the trial court had rested solely on (B)(1)(d) at
the permanent custody hearing, or even mentioned (B)(1)(d) at all at the permanent
custody hearing or in the judgment entries, there might have been an issue.
However, the trial court’s statements at the hearing beyond whether the children had
been in the agency’s custody for “I believe it was a year,” seemed to imply that the
children could not or should not be placed with the appellants within a reasonable
time, which is what the trial court found in its judgment entries.
{¶74} The trial court emphasized at the permanent custody hearing the
appellants’ utter lack of progress in this case and their lack of contact with their
12
Revised Code 2151.414 states that “For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the earlier of the date the child is
adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal
of the child from home.” Both of these dates would have been in July of 2018.
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Case Nos. 10-19-10, 11, 12, 13
children and their attorneys. The trial court found that appellants had done nothing
to remedy the situation leading to the removal of the children from their care. The
trial court’s findings at the hearing thus support a finding that the children could not
be placed with the appellants within a reasonable time, or should not be placed with
the appellants, and this was explicitly found and stated in the trial court’s judgment
entries on the matter.
{¶75} Moreover, the judgment entries contain a number of statements that
were established at the hearing that show the children could not or should not be
placed with the appellants within a reasonable time pursuant to R.C.
2151.414(B)(1)(a). The appellants failed to secure housing, failed to notify the
agency regarding any secure housing, the appellants failed to secure employment,
they failed to visit and interact with the children, and they failed to engage in any
activities under the case plan.
{¶76} The appellants certainly demonstrated a lack of commitment to the
children, failed to utilize the services available to them through MCDJFS, seemed
to be unwilling to provide shelter or other basic necessities, and arguably had
abandoned the children. Pursuant to R.C. 2151.011, “a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain contact with
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Case Nos. 10-19-10, 11, 12, 13
the child for more than ninety days, regardless of whether the parents resume contact
with the child after that period of ninety days.”13
{¶77} Regardless, all of the issues that were discussed, which were largely
noted by the trial court at the permanent custody hearing and in the judgment entry,
establish R.C. 2151.414(E)(1), (4), (10), and (14), any one of which was enough to
find that the children could not be placed with the appellants within a reasonable
time or should not be placed with the appellants pursuant to R.C. 2151.414(B)(1)(a).
Thus appellants’ arguments that the first prong of permanent custody was not
established by clear and convincing evidence in this matter are not well-taken.
{¶78} We turn next to the best interest factors codified in R.C. 2151.414(D).
Although the trial court did not make specific findings regarding individual factors,
its judgment entry indicated that it had considered R.C. 2151.414(D) in determining
the children’s best interests in its entry.
{¶79} In its entry, the trial court had already found that the appellants had
essentially no relationship with their children, and that the children were in a
position to be adopted. The GAL advocated for permanent custody, and the children
needed legally secure placement. The trial court’s stated findings are supported by
the record and coincide with the best interests factors to be considered pursuant to
13
The trial court noted at the hearing and in its entry that the parents had not been in contact with the children
for over ten months, but there was no statutory mention of “abandonment” in the trial court’s entry, so
appellants do not seem to contest this issue.
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Case Nos. 10-19-10, 11, 12, 13
R.C. 2151.414(D). Therefore we cannot find that the trial court erred by finding by
clear and convincing evidence that it was in the best interests of the children for
MCDJFS to be granted permanent custody. Travis’s third assignment of error and
Tiffany’s second assignment of error are overruled.
Travis’s Fourth Assignment of Error
{¶80} In Travis’s fourth assignment of error, he argues that the trial court
erred by failing to sua sponte continue the permanent custody hearing. Specifically,
he contends that with the “equivocation” given by his attorney, and the importance
of a permanent custody hearing, the trial court should have continued the matter
even absent a motion.
Standard of Review
{¶81} Generally, the decision to grant or deny a continuance is within the
sound discretion of the trial judge. State v. Unger, 67 Ohio St.2d 65 (1981).
However, as no request for a continuance was actually made in this matter, we
review it for plain error.
{¶82} For this Court to notice plain error, the error must be an obvious defect
in a trial’s proceedings, it must have affected substantial rights, and it must have
affected the outcome of the trial. State v. Steele, 138 Ohio St.3d 1,
2013-Ohio-2470,
¶ 30 (2013), citing State v. Eafford,
132 Ohio St.3d 159,
2012-Ohio-2224, ¶ 11,
citing State v. Payne,
114 Ohio St.3d 502,
2007-Ohio-4642; State v. Lynn, 129 Ohio
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Case Nos. 10-19-10, 11, 12, 13
St.3d 146, 2011-Ohio-2722, ¶ 13; Crim.R. 52(B). Moreover, “even when the
minimum requirements have been met, a reviewing court should still be
conservative in its application of plain-error review, reserving notice
of plain error for situations involving more than merely theoretical prejudice to
substantial rights.”
Steele at ¶ 30, citing State v. Long,
53 Ohio St.2d 91, 94 (1978).
“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Long at paragraph three of the syllabus.
Analysis
{¶83} Typically, where a motion for a continuance is actually made, a trial
court has a number of factors it may consider when determining the motion. These
factors include: the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses, opposing
counsel and the court; whether the requested delay is for legitimate reasons
or whether it is dilatory, purposeful, or contrived; whether the defendant contributed
to the circumstance which gives rise to the request for a continuance; and other
relevant factors, depending on the unique facts of each case. State v. Unger, 67
Ohio St.2d 65, 67-68 (1981). A trial court is also permitted to consider judicial
economy.
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Case Nos. 10-19-10, 11, 12, 13
{¶84} As no request for a continuance was made in this matter, the trial court
did not conduct any analysis regarding the stated factors. Nevertheless, based on
the record the trial court could have readily determined that a continuance would
have been inconvenient, that it would have been dilatory, that it would not have
been helpful given the appellants’ penchant for not attending hearings, and that the
need for a continuance was caused by the appellants own negligence. These reasons
would all support the trial court denying a continuance if one had actually been
requested. Under the facts and circumstances of this case, we cannot find that the
trial court was required to sua sponte grant a continuance of the permanent custody
hearing. Plain error is to be recognized with the utmost caution, and we decline to
find it here. Therefore, Tyler’s fourth assignment of error is overruled.
Tyler’s Fifth Assignment of Error
{¶85} In Tyler’s fifth assignment of error, he argues that the trial court erred
when it denied his motion for relief from judgment.
{¶86} In this case, Tyler filed a motion for relief from judgment on the same
day that he filed his notice of appeal. The trial court actually did not have a chance
to rule on Tyler’s motion for relief from judgment before the appeal was perfected.
Thus any claim by Tyler that the trial court erred by “denying” his motion for relief
from judgment is not ripe for appeal because the motion has not actually been ruled
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Case Nos. 10-19-10, 11, 12, 13
upon according to the record before this Court. Therefore this assignment of error
is not well-taken.
Conclusion
{¶87} For the foregoing reasons, Tiffany’s and Tyler’s assignments of error
are overruled and the judgments of the Mercer County Common Pleas Court,
Juvenile Division, are affirmed.
Judgments Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
ZIMMERMAN, J., oncurring in part, dissenting in part.
{¶88} I respectfully dissent from the lead decision affirming the trial court’s
decisions granting permanent custody of C.H. and T.H. to MCDJFS. Instead, I
would conclude that the trial court failed to comply with the statutory requirements
set forth in R.C. 2151.414 and 2151.419 when it granted permanent custody of C.H.
and T.H. to MCDJFS. However, before addressing the reasons from which I would
reverse this case, I must first address my concerns with the notice of the permanent-
custody hearing that was provided to Tiffany and Tyler.
{¶89} While I concur with the lead opinion’s resolution of Tiffany’s and
Tyler’s arguments challenging the notice of the permanent-custody hearing, I
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Case Nos. 10-19-10, 11, 12, 13
disagree with its reasons for doing so. Thus, I am writing separately on this issue
to highlight the deficiencies with the notice in this case.
{¶90} Contrary to the lead opinion’s analysis, I would conclude that
MCDJFS did not follow the service requirements of R.C. 2151.29 or Juv.R. 16.
That is, I do not believe that the agency properly invoked the service-by-publication
rule because MCDJFS exercised minimal efforts—efforts that do not demonstrate
the diligence, care, or attention, as might be expected from a person of ordinary
prudence and activity to locate a person—to locate Tiffany and Tyler. Moreover, I
diverge from the lead opinion’s analysis that MCDJFS’s publication comports with
the requirements of Juv.R. 16—a rule with which the agency must strictly comply.
Nevertheless, because I think that Tiffany and Tyler waived these errors, I join the
lead opinion’s resolution of this issue.
{¶91} “[T]he State may not deprive parents of their parental rights without
due process of law.” In re J.T., 4th Dist. Jackson No. 18CA9, 2019-Ohio-465, ¶ 29,
citing In re James,
113 Ohio St.3d 420,
2007-Ohio-2335, ¶ 16, In re A.G., 4th Dist.
Athens No. 14CA28,
2014-Ohio-5014, ¶ 12, and In re M.H., 4th Dist. Vinton No.
11CA683,
2011-Ohio-5140, ¶ 49-50. “Although ‘due process’ lacks precise
definition, courts have long held that due process requires both notice and an
opportunity to be heard.” Id. at ¶ 30, citing In re In re Thompkins,
115 Ohio St.3d
409,
2007-Ohio-5238, ¶ 12, citing Hagar v. Reclamation Dist. No. 108, 111 U.S.
-41-
Case Nos. 10-19-10, 11, 12, 13
701, 708, 4 S.Ct. 663 (1884), and citing Caldwell v. Carthage,
49 Ohio St. 334, 348
(1892). “‘An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.’”
Id., quoting Mullane v.
Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314,
70 S.Ct. 652 (1950), and citing
In re Thompkins at ¶ 13.
{¶92} Importantly, “given the importance of the parent-child bond, ‘a
Juvenile Court cannot make a valid order changing temporary commitment of a
dependent child to a permanent one without a service of notice upon the parent of
the child, strictly in accordance with the law.’” Id. at ¶ 31, quoting In re Frinzl, 152
Ohio St. 164, 173 (1949), and citing In re S.S., 9th Dist. Wayne No. 10CA0010,
2010-Ohio-6374, ¶ 43, quoting In re Cowling,
72 Ohio App.3d 499, 500-501 (9th
Dist.1991). “Accordingly, if a court fails to serve a summons to a parent in
compliance with the procedural rules, then it lacks personal jurisdiction over the
parent.”
Id., citing In re Z.H., 9th Dist. Summit No. 26844,
2013-Ohio-3904, ¶ 14.
“‘“It is rudimentary that in order to render a valid personal judgment, a court must
have personal jurisdiction over the defendant.”’”
Id., quoting State ex rel. Doe v.
Capper,
132 Ohio St.3d 365,
2012-Ohio-2686, ¶ 13, quoting Maryhew v. Yova,
11
Ohio St.3d 154, 156 (1984). “‘“[A] judgment rendered without proper service or
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Case Nos. 10-19-10, 11, 12, 13
entry of appearance is a nullity and void.”’” Id., quoting State ex rel. Ballard v.
O’Donnell,
50 Ohio St.3d 182, 183-184 (1990), quoting Lincoln Tavern, Inc. v.
Snader,
165 Ohio St. 61, 64 (1956), and citing Knickerbocker Properties, Inc. XLII
v. Delaware Cty. Bd. of Revision,
119 Ohio St.3d 233,
2008-Ohio-3192, ¶ 20 and
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision,
87 Ohio St.3d
363, 366-367 (2000). “‘Thus, a valid court judgment requires both proper service
under the applicable Ohio rules and adequate notice under the Due Process Clause.’”
Id., quoting In re A.G., 4th Dist. Athens No. 14CA28,
2014-Ohio-5014, ¶ 14, citing
Samson Sales, Inc. v. Honeywell, Inc.,
66 Ohio St.2d 290, 293 (1981).
{¶93} “When the state seeks to interfere with a parent’s liberty interest in the
care, custody, and management of his or her child, the Due Process Clause requires
the state to ‘attempt to provide actual notice’ to the parents.” (Emphasis sic.) Id. at
¶ 32, quoting In re Thompkins at ¶ 14, citing Dusenbery v. United States, 534 U.S.
161, 170,
122 S.Ct. 694 (2002). “Due process does not, however, require the state
to undertake ‘“heroic efforts”’ to provide actual notice.”
Id., quoting In re
Thompkins at ¶ 14, quoting
Dusenbery at 170. Moreover, due process does not
require a parent to receive actual notice before the State may permanently sever the
parent-child relationship; rather, due process is satisfied “if the state employs means
that are ‘reasonably calculated’ to inform the parent of the proceeding involving his
or her child.”
Id., citing In re Thompkins at ¶ 14 and In re A.G.,
139 Ohio St.3d 572,
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Case Nos. 10-19-10, 11, 12, 13
2014-Ohio-2597, ¶ 64. The State exercises means that are reasonably calculated to
inform the parent of the proceeding involving his or her child if it exercises
“‘reasonable diligence in attempting to notify [parents] that [their] parental rights
[are] subject to termination.’”
Id., quoting In re Thompkins at ¶ 15, and citing In re
S.S. at ¶ 49.
{¶94} Generally, “‘reasonable diligence’ means ‘“[a] fair, proper and due
degree of care and activity, measured with reference to the particular circumstances;
such diligence, care, or attention as might be expected from a man of ordinary
prudence and activity.”’” Id. at ¶ 33, quoting In re Thompkins at ¶ 25, quoting
Sizemore v. Smith, 6 Ohio St.3d 330, 332 (1983), quoting Black’s Law Dictionary
412 (5th Ed.1979). “‘[W]hat constitutes reasonable diligence will depend on the
facts and circumstances of each particular case.’”
Id., quoting
Sizemore at 332.
“Essentially, however, ‘“[r]easonable diligence requires taking steps which an
individual of ordinary prudence would reasonably expect to be successful in
locating a [person’s] address.”’”
Id., quoting In re Thompkins at ¶ 25, quoting
Sizemore at 332. “‘“Minimal efforts do not constitute ‘reasonable diligence;’ rather
it is demonstrated by such diligence, care, or attention as might be expected from a
person of ordinary prudence and activity.”’”
Id., quoting In re S.S. at ¶ 49, quoting
Cowling at 502.
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Case Nos. 10-19-10, 11, 12, 13
{¶95} “‘[S]teps taken in the effort to exercise reasonable diligence might
include consulting a city directory, examining government records, or making
inquiries of possible acquaintances of the person sought.’” Id. at ¶ 34, quoting In
re Thompkins at ¶ 26, citing Sizemore at 332. “These steps are not, however,
‘mandatory.’ Instead, the steps ‘exemplify that reasonable diligence requires [the
use of] common and readily available sources’ in the search.”
Id., quoting In re
Thompkins at ¶ 26.
{¶96} R.C. 2151.414, which governs permanent-custody motions, provides,
in its relevant part, that, “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.” R.C. 2151.414(A)(1). Importantly, the
statute requires the notice to “contain a full explanation that the granting of
permanent custody permanently divests the parents of their parental rights, a full
explanation of their right to be represented by counsel and to have counsel appointed
… if they are indigent, and the name and telephone number of the court employee
designated by the court … to arrange for the prompt appointment of counsel for
indigent persons.” Id.
{¶97} R.C. 2151.29 requires service to be made by delivering a copy to the
person summoned or by leaving a copy at the person’s usual place of residence.
However,
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Case Nos. 10-19-10, 11, 12, 13
[i]f the juvenile judge is satisfied that such service is impracticable,
the juvenile judge may order service by registered or certified mail. If
the person to be served is without the state but the person can be found
or the person’s address is known, or the person’s whereabouts or
address can with reasonable diligence be ascertained, service of the
summons may be made by delivering a copy to the person personally
or mailing a copy to the person by registered or certified mail.
R.C. 2151.29. Moreover, the statute provides that “[w]henever it appears by
affidavit that after reasonable effort the person to be served with summons cannot
be found or the person’s post-office address ascertained,” service must be made by
publication in a newspaper of “general circulation throughout the county.” Id.
“Service by publication thus ‘is reserved for those cases in which the residence of
the parent is unknown and is not ascertainable with reasonable diligence.’” In re
J.T. at ¶ 38, quoting In re R.P., 9th Dist. Summit No. 26271, 2012-Ohio-4799, ¶
18, and citing In re R.L.P., 12th Dist. Butler No. CA2017-01-012,
2017-Ohio-7359,
¶ 19. “Service by publication is a method of last resort.” In re Miller,
33 Ohio
App.3d 224, 226 (8th Dist.1986). See also In re J.T. at ¶ 38. When service is made
by publication in a newspaper of general circulation throughout the county, the
summons must “state the substance and the time and place of the hearing, which
shall be held at least one week later than the date of the publication.” R.C. 2151.29.
{¶98} Likewise, Juvenile Rule 16(A) provides guidelines for service by
publication when the residence of a party is unknown and cannot be ascertained
with reasonable diligence. That rule provides, in relevant part, that “[t]he
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Case Nos. 10-19-10, 11, 12, 13
publication shall contain the name and address of the court, the case number, the
name of the first party on each side, and the name and last known address, if any, of
the person or persons whose residence is unknown.” Juv.R. 16(A). “The
publication shall also contain a summary statement of the object of the complaint
and shall notify the person to be served that the person is required to appear at the
time and place stated,” which “shall not be less than seven days after the date of
publication.” Id.
{¶99} According to the record in this case, C.H. and T.H. were removed from
their home on May 21, 2018 after Tiffany and Tyler were arrested and subsequently
incarcerated in the Mercer County jail. (See Case No. 32019002, Doc. Nos. 1, 33);
(Case No. 32019003, Doc. Nos. 1, 33). The only address for Tiffany or Tyler
contained in the record after their release from incarceration was at a campground,
specifically “mailing address 222 Sycamore Street, Kenton, Ohio, 43326, physical
address Lot 13, Salisbury Park, Kenton, Ohio.” (Case No. 32019002, Doc. No. 25);
(Case No. 32019003, Doc. No. 25).
{¶100} When MCDJFS filed its motions for permanent custody on May 13,
2019, service was requested to be made on Tiffany and Tyler at the campground—
their last known address. (Id.); (Id.). On May 16, 2019, a deputy sheriff attempted
to serve the motions by personal service but was “[u]nable to locate lot number.”
(Case No. 32019002, Doc. Nos. 28, 29, 30, 31); (Case No. 32019003, Doc. Nos. 28,
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Case Nos. 10-19-10, 11, 12, 13
29, 30, 31). Without taking any additional steps to notify Tiffany or Tyler
personally or by mail, MCDJFS filed motions for service by publication on May 23,
2019. (Case No. 32019002, Doc. No. 32); (Case No. 32019003, Doc. No. 32). The
motions were accompanied by affidavits, which state that the current address of the
Tiffany and Tyler is unknown, and that it could not be ascertained with reasonable
diligence. (Case No. 32019003, Doc. No. 33); (Case No. 32019003, Doc. No. 33).
The affidavits include a background of the case, stating that Tiffany and Tyler did
not provide a valid address to law enforcement, to MCDJFS, or the Mercer County
Child Support Enforcement Agency. (Id.); (Id.). In addition, the affidavits state
that (separate from the attempted-personal service of the permanent-custody
motion) a law enforcement officer with the Kenton Police Department attempted to
locate Tiffany and Tyler at the Salisbury Park address on an unrelated matter but
was unable to locate them there. (Id.); (Id.).
{¶101} Ultimately, the trial court granted MCDJFS’s motions on May 24,
2019 and service was made by publication the following day. The publication for
C.H. provides as follows:
IN THE COMMON PLEAS COURT OF MERCER COUNTY,
OHIO JUVENILE DIVISION
IN THE MATTER OF: C.H. an alleged neglected/dependent child.
Case No. 32019002.
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Case Nos. 10-19-10, 11, 12, 13
NOTICE BY PUBLICATION
(O.R.C. 2151.29)
To: Tiffany Renee H[.] and Tyler H[.], parents of C.H., D.O.B.
8/3/2016.
The Mercer County Department of Job and Family Services has
filed a Motion for Permanent Custody regarding the child, C.H.,
D.O.B. 8/3/2016, in the above captioned case. The motion requests
that Permanent Custody of the child be granted to the Mercer County
Department of Job and Family Services.
Tiffany Renee H[.], Tyler H[.] and the unknown father of the
child are to be personally present in the Mercer County Juvenile
Court, Mercer County Courthouse, Celina, Ohio, at 2:30 P.M. on June
4, 2019. Should they fail to appear at that time they may lose valuable
rights with regard to the child. His attention is directed to the
following notice.
NOTICE
Notice to all parties: Each party to this proceeding has the right
to be represented by counsel, to be appointed by the Court in the event
that the party is unable to afford counsel. Any party desiring legal
assistance in this matter should contact Penny Nieport, Deputy Clerk
of the Mercer County Juvenile Court, at 419-586-2418.
(Emphasis sic.) (Case No. 32019002, Doc. No. 38).14 Subsequent to the
publication, the cases proceeded to a permanent-custody hearing on June 4, 2019.
Though their attorneys were present, neither Tiffany nor Tyler attended the hearing.
At the permanent-custody hearing, Tiffany’s trial counsel informed the trial court
that she had not been in contact with Tiffany despite telling her of the need to
prepare for the hearing. According to Tiffany’s trial counsel, she thought that she
gave Tiffany a “sticky note with the next court date on it” when Tiffany appeared
14
The publication regarding T.H. includes the same information, the only differences being T.H.’s personal
identifiers. (See Case No. 32019003, Doc. No. 38).
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Case Nos. 10-19-10, 11, 12, 13
at the previous hearing. (June 4, 2019 Tr. at 9). Nevertheless, Tiffany’s trial
counsel did not object to the inadequacy of the notice.
{¶102} Further, Tyler’s trial counsel informed the trial court that he spoke
“with him on the phone” that day but that neither he nor Tiffany could attend the
hearing because they did not have transportation. (Id. at 7). According to Tyler’s
trial counsel, Tyler “said from the last hearing at which he was attending he knew
about the [permanent-custody] hearing … .” (Id.). However, Tyler’s trial counsel
clarified for the trial court that Tyler (either that day or the day prior) “asked [him]
about th[e] hearing and whether it was for permanent custody” to which Tyler’s trial
counsel responded with an “equivocal” answer. (Id. at 22). Tyler’s trial counsel
further stated that while he was “satisfied from the statement of the [caseworker]
that they knew it was permanent custody,” “[t]hey might have gotten an ambiguous
answer from [him] over the phone, however.” (Id. at 23). Importantly, Tyler’s trial
counsel did not object to the inadequacy of the notice or seek a continuance.
{¶103} Based on my review of the record, I would conclude that Tiffany and
Tyler did not receive proper notice of the permanent-custody hearing. Specifically,
I do not think that MCDJFS attempted to serve Tiffany and Tyler as it is required to
do by R.C. 2151.29 or Juv.R. 16—namely, MCDJFS’s efforts in attempting to serve
Tiffany or Tyler with notice that they face the termination of their parental rights
were neither reasonable nor diligent. Compare In re J.T., 2019-Ohio-465, at ¶ 48
-50-
Case Nos. 10-19-10, 11, 12, 13
(concluding that the Agency “did not exercise reasonable diligence in attempting to
serve Appellant with notice that she faced the termination of her parental rights”).
That is, the steps which MCDJFS employed to locate Tiffany and Tyler are not the
steps which a person of ordinary prudence would reasonably expect to be successful
in locating Tiffany and Tyler. Compare In re Cooper, 8th Dist. Cuyahoga No.
79899, 2002 WL 568192, *3 (Apr. 11, 2002) (“Despite her claim that she used
reasonable diligence to locate Cooper, the record demonstrates Schwarz failed to
take the steps which a person of ordinary prudence would reasonably expect to be
successful.”).
{¶104} R.C. 2151.29 requires that service be made by delivering a copy to
the person summoned or by leaving a copy at the person’s usual place of residence.
“If neither of these two options is practical, the statute provides for service by either
registered or certified mail.” In re S.S., 2010-Ohio-6374, at ¶ 14. “Thus, ‘[f]or
proper service, the parents must be notified of the permanent custody motion and
the initial permanent custody hearing by one of three methods: personal service,
service by certified or registered mail (if the parent’s whereabouts cannot be
discerned after reasonable diligence), or—if both of those methods fail—by
publication.’” Id. at ¶ 18, quoting In re Keith Lee P., 6th Dist. Lucas No. L-03-
1266,
2004-Ohio-1976, ¶ 8. See In re Thompkins,
115 Ohio St.3d 409, 2007-Ohio-
5238, at ¶ 24 (concluding that “the board complied with the rules by attempting to
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Case Nos. 10-19-10, 11, 12, 13
personally serve [the father] at the Dayton address, by attempting to serve him by
certified mail at the Columbus address, and by publishing a notice in the Daily Court
Reporter in Montgomery County”).
{¶105} Here, the totality of MCDJFS’s efforts to serve Tiffany and Tyler
notice that they were facing the termination of their parental rights consisted of a
deputy sheriff (on one occasion) attempting to personally serve them at their last-
known place of residence by travelling to the campground and returning the notice
after he was “unable to locate the lot #.” (Case No. 32019002, Doc No. 30); (Case
No. 32019003, Doc No. 30). There is no indication whether the deputy sheriff made
any further attempts to locate Tiffany or Tyler or whether he inquired with anyone
at the campground as to their whereabouts. Compare In re Thompkins at ¶ 4 (noting
that the process server ascertained that the father “had not resided at the Dayton
address for almost one year”). After the deputy sheriff was unable to personally
locate Tiffany or Tyler, MCDJFS made no further attempt to locate or serve them—
namely, it did not attempt to send a letter by certified or registered (or even ordinary)
mail or attempt to contact Tiffany’s or Tyler’s family or friends. See In re J.T. at ¶
34 (noting that the exercise of reasonable diligence includes “‘making inquiries of
possible acquaintances of the person sought’”), quoting In re Thompkins at ¶ 26,
citing Sizemore, 6 Ohio St.3d at 332. The only other evidence in the record that
MCDJFS attempted to locate Tiffany and Tyler is the averment that it was informed
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Case Nos. 10-19-10, 11, 12, 13
that a law enforcement officer with the Kenton Police Department could not locate
Tiffany or Tyler at the campground.
{¶106} Moreover, MCDJFS did not attempt to perfect service by certified or
registered mail (despite possessing an existing mailing address for Tiffany and
Tyler) before resorting to service by publication. See In re J.T. at ¶ 48 (noting that
“the record does not contain any evidence that [the mother’s] address was attempted
and not known”). Because the record reflects that MCDJFS ascertained a mailing
address for Tiffany and Tyler, it was required to attempt to serve Tiffany and Tyler
by certified or registered mail. Accord R.C. 2151.29 (“A copy of the summons and
the complaint, indictment, or information shall be sent by registered or certified mail
to the last known address of the person summoned unless it is shown by affidavit
that a reasonable effort has been made, without success, to obtain such address.”).
See In re J.T. at ¶ 50 (“Because [the agency] had in fact ascertained [the mother’s]
address, R.C. 2151.29 required the state to serve [her] either personally or by
registered or certified mail.”). See also id. at ¶ 40 (noting that the Supreme Court
of Ohio has concluded that “[s]ervice by publication is a valid means of notifying a
parent of a permanent custody proceeding when a children services agency attempts
certified mail and the postal service returns the mailing as, ‘Attempted Not
Known.’”), citing In re Thompkins at ¶ 2.
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Case Nos. 10-19-10, 11, 12, 13
{¶107} Notwithstanding MCDJFS’s failure to obtain returned certified or
registered mail as undeliverable to the mailing address that Tiffany and Tyler
provided to MCDJFS, MCDJFS averred that “the present addresses of Tiffany …
* and Tyler … are unknown to the Affiant, and cannot with reasonable diligence
be ascertained.” (Case No. 32019002, Doc. No. 33); (Case No. 32019003, Doc. No.
33). Compare In re J.T. at ¶ 48-50 (noting that, notwithstanding “[t]he caseworker’s
affidavit for service by publication avers that [the mother’s] address is ‘unknown to
affiant and cannot with reasonable diligence be ascertained,’” the record reflected
that the agency “did in fact ascertain” her mailing address). MCDJFS’s averment
is belied by the record. In re R.P., 2012-Ohio-4799, at ¶ 18 (“‘Service by
publication based upon a false affidavit is defective.’”), quoting Dragich v. Dragich,
10th Dist. Franklin No. 86AP-178,
1986 WL 10409, *1 (Sept. 16, 1986), and citing
In re Miller,
33 Ohio App.3d at 226.
{¶108} Indeed, according to Tiffany’s trial counsel, Tiffany “indicated to
[her that] she was residing at the Salisbury Park camp ground on Site 13. Though,
she could not receive mail there, she did get (inaudibles) address for mail that to a
location she’s not residing at to receive mail.” (June 4, 2017 Tr. at 6). However,
Tiffany’s trial counsel further informed the court that she “received mail back.”
(Id.). Yet, Tyler’s trial counsel informed the trial court that, when he spoke with
Tyler on the day of the permanent-custody hearing, Tyler “said that he was at the
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Case Nos. 10-19-10, 11, 12, 13
camp ground, [and] gave [him] a second address there that he (inaudibles) mailing
address only.” (Id. at 7).
{¶109} Moreover, although the MCDJFS caseworker testified that she spoke
with Tyler’s mother on May 23, 2019 who informed her that she asked Tiffany and
Tyler to leave the Salisbury campground residence, there is no evidence that
MCDJFS took any further steps to ascertain the whereabouts of Tiffany or Tyler.
(See id. at 15-16). Compare In re Cooper, 2002 WL 568192, at *3 (concluding that
the Agency did not use reasonable efforts to locate the father because it “failed to
visit the home to investigate whether Mr. Cooper, Sr. knew where his son was
residing”). There is no evidence in the record that the caseworker asked Tyler’s
mother where Tiffany and Tyler relocated after his mother informed her that she
asked them to leave her residence. Rather, the caseworker testified that Tyler’s
mother informed her “that if she got a phone number for them, she would call [her]
with it and she ha[d] not called [her] with that, with the phone number.” (Id. at 18).
There is no evidence in the record whether the caseworker made any attempt to
follow up with Tyler’s mother or made any further effort to locate them. See In re
Cooper at *3; In re
Miller at 227 (concluding that the Agency did not engage in
reasonable diligence to locate the mother because, despite awareness that the child
“knew where her mother lived” and knew her telephone number, “[n]o evidence
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Case Nos. 10-19-10, 11, 12, 13
was presented that [the Agency] asked [the child] for her mother’s address or phone
number”).
{¶110} “Under R.C. 2151.29, service by publication is proper ‘[w]henever it
appears by affidavit that after reasonable effort the person to be served with
summons cannot be found or the person’s post-office address ascertained.’” In re
J.T., 2019-Ohio-465, at ¶ 51, quoting R.C. 2151.29. Because MCDJFS exercised
minimal efforts—efforts that do not demonstrate such diligence, care, or attention,
as might be expected from a person of ordinary prudence and activity to locate a
person—and because the record reflects that MCDJFS ascertained a mailing address
(but did not attempt to mail the notice), I do not believe that the agency properly
invoked the service-by-publication rule. See
id. (“Because the evidence shows that
[the mother’s] post-office address not only could, but was, ascertained, we do not
think the agency properly invoked the service-by-publication rule”), citing Dragich,
1986 WL 10409, at *1 (Sept. 16, 1986) and PHH Mtge. Corp. v. Prater,
133 Ohio
St.3d 91,
2012-Ohio-3931, ¶ 12, quoting Cent. Trust Co., N.A. v. Jensen,
67 Ohio
St.3d 140, 143 (1993) (stating that “[w]hen a party’s address is known or easily
ascertainable and the cost of notice is little more than that of a first-class stamp, the
balance will almost always favor notice by mail over publication”). See also
id.
(“Instead, according to [In re] Thompkins, the agency first should have attempted
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Case Nos. 10-19-10, 11, 12, 13
service by certified mail.”); In re Thompkins, 115 Ohio St.3d 409,
2007-Ohio-5238,
at ¶ 24.
{¶111} Further, if service by publication were proper, I do not believe that
the publications in this case comport with the requirements of Juv.R. 16. Compare
In re J.T. at ¶ 48 (concluding that service by publication did not comply “with the
due process requirement that service be reasonably calculated to provide her with
notice and an opportunity to be heard at the permanent custody hearing”). Although
the publications contain the name of the juvenile court, they do not contain the
address for the court as they are required include under Juv.R. 16. Nor do the
publications reflect the last known address of Tiffany and Tyler as they are required
to include under the rule. “[T]he requirements of Juv.R. 16(A) are mandatory and
shall be strictly enforced.” (Emphasis added.) In re R.P., 2012-Ohio-4799, at ¶ 11,
quoting In re Miller at 226, and citing Anstaett v. Benjamin, 1st Dist. Hamilton No.
C-010376,
2002-Ohio-7339, ¶ 14, citing Moor v. Parsons,
98 Ohio St. 233, 238
(1918). See also In re Thompkins at ¶ 34 (“Because service by publication is a
method of last resort, the requirements of Juv.R. 16(A) are to be strictly enforced.”).
Therefore, the failure to include this information results in defective service. See In
re
Miller at 226. (“The failure to include [Juv.R. 16] information in the publication
notice results in defective service.”), citing In re Wilson,
21 Ohio App.3d 36, 39-40
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Case Nos. 10-19-10, 11, 12, 13
(6th Dist.1984), Demianczuk at 246, and Northland Dodge, Inc. v. Damachi, 56
Ohio App.2d 262, 263-264 (10th Dist.1978).
{¶112} Further, in addition to the missing elements, the publications twice
incorrectly identify Tiffany’s surname. And, the publications indicate that it is
directed to Tiffany, Tyler, “and the unknown father of the child” even though Tyler
was definitively established to be the father of C.H. and T.H. at the time of the
publications. (Case No. 32019002, Doc No. 38); (Case No. 320190003, Doc. No.
38).
{¶113} Nevertheless, despite my conclusion that Tiffany and Tyler did not
receive proper notice of the permanent-custody hearing, Tiffany and Tyler waived
these deficiencies for purposes of appeal because they failed to argue to the trial
court that the notice was inadequate. Accord In re X.Q., 8th Dist. Cuyahoga No.
107851, 2019-Ohio-1782, ¶ 18 (concluding that the mother’s “attorney was present
and did not argue the issue of improper notice, thus waiving the issue”); In re D.H.,
177 Ohio App.3d 246,
2008-Ohio-3686, ¶ 38 (8th Dist.) (“Here, the mother’s
attorney, after receiving notice of the hearing, appeared before the court and never
raised any argument as to improper notice to her client, thereby waiving any
argument on appeal.”). See In re Jennifer L., 6th Dist. Lucas No. L-97-1295,
1998
WL 230808, *3 (May 1, 1998) (“We are greatly troubled by the circumstances that
occurred in this case. However, we find that the father waived his arguments
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Case Nos. 10-19-10, 11, 12, 13
relating to personal jurisdiction, and his ability to challenge the temporary custody
order of the trial court as void when counsel who appeared on his behalf at the
permanent custody hearings did not argue that the trial court had no jurisdiction to
consider a motion for permanent custody against him.”); In re M.F., 3d Dist. Henry
No. 7-15-06, 2015-Ohio-4224, ¶ 22 (concluding that the father waived any objection
to inadequacy of the notice because he failed to argue to the trial court that the notice
was inadequate under R.C. 2151.414(A)”). “‘The issue of notice is waived on
appeal when the parent’s attorney is present for various permanent custody hearings
and never argues improper notice.’” In re I.G., 3d Dist. Marion No. 9-13-43, 2014-
Ohio-1136, ¶ 17, quoting In re Keith Lee P.,
2004-Ohio-1976, at ¶ 9, citing In re
Billingsley, 3d Dist. Putnam Nos. 12-02-07 and 12-02-08,
2003-Ohio-344, ¶ 10 and
In re Jennifer L. at *3. See also In re M.F. at ¶ 20.
{¶114} Likewise, “[t]he parent’s attorney’s statement to the juvenile court
that he or she communicated with the parent who failed to appear, proves that the
parent had constructive notice of the permanent custody hearing.” In re Keith Lee
P. at ¶ 8, citing In re Broadzenski, 5th Dist. Stark No. 1997CA00412, 1998 WL
753190, *2 (Oct. 26, 1998). In addition to failing to object to the inadequacy of the
notice, it can be argued that Tiffany and Tyler had constructive notice of the
permanent-custody hearing. Accord In re D.H. at ¶ 37-38 (concluding that the
mother’s trial attorney’s representation that she communicated with the mother was
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Case Nos. 10-19-10, 11, 12, 13
“clear that the mother had notice of the permanent-custody hearing”). That is,
Tiffany’s trial counsel informed the trial court that she provided Tiffany with a
“sticky note” indicating the date of the permanent-custody hearing when Tiffany
was present at the previous hearing. Further, although (standing alone) I do not
consider it to be timely notice, Tyler’s trial counsel informed the trial court that he
communicated with his client earlier that day about the hearing. And, Tyler’s trial
counsel informed the trial court that Tyler knew of the permanent-custody hearing
at the previous hearing.
{¶115} Having addressed my concerns with the notice of the permanent-
custody hearing provided to Tiffany and Tyler, I now turn to the trial court’s
decisions granting permanent custody of C.H. and T.H. to MCDJFS. Here, I would
conclude that the trial court’s entries granting permanent custody of C.H. and T.H.
to MCDJFS are defective. When considering a motion for permanent custody of a
child, the trial court must comply with the statutory requirements set forth in R.C.
2151.414. See In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-
6027, ¶ 14. R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when
determining whether to grant a motion for permanent custody: (1) the trial court
must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-(e) apply, and (2)
the trial court must find that permanent custody is in the best interest of the child.
In re S.G., 9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10. See also In re
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Case Nos. 10-19-10, 11, 12, 13
Brown, 98 Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides, in
relevant part, that a trial court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this section,
by clear and convincing evidence, that it is in the best interest of the
child to grant permanent custody of the child to the agency that filed
the motion for permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, … and the child cannot be
placed with either of the child’s parents within a reasonable time or
should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period *
….
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28
of the Revised Code or the date that is sixty days after the removal of
the child from home.
R.C. 2151.414(B)(1).
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Case Nos. 10-19-10, 11, 12, 13
{¶116} “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f one or more
of the factors enumerated in R.C. 2151.414(E) is found to be present by clear and
convincing evidence, the trial court shall find that the child cannot be placed with
the parents within a reasonable period of time or should not be placed with the
parents.’” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13, quoting
In re A.F., 3d Dist. Marion No. 9-11-27,
2012-Ohio-1137, ¶ 54, citing In re
Goodwin, 3d Dist. Shelby No. 17-08-12,
2008-Ohio-5399, ¶ 23.
R.C. 2151.414(E) provides, in relevant part:
(E) In determining at a hearing … 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 … 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
be 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 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.
…
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Case Nos. 10-19-10, 11, 12, 13
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child[.]
R.C. 2151.414(E)(1), (4).
{¶117} “‘If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which
requires the trial court to ‘determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.’”
In re K.M.S., 3d Dist. Marion No. 9-15-37, 2017-Ohio-142, ¶ 23, quoting In re A.F.
at ¶ 55, and citing R.C. 2151.414(B)(1). “The best interest determination is based
on an analysis of R.C. 2151.414(D).”
Id.
{¶118} “Under R.C. 2151.414(D)(1), the trial court is required to consider
all relevant factors listed in that subdivision, as well as any other relevant factors.”
Id. at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12, and 8-13-14,
2014-Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity
of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
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Case Nos. 10-19-10, 11, 12, 13
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, …;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the
circumstances when making its best interest determination and no single factor is
given greater weight than others by the statute.” In re K.M.S. at ¶ 24, citing In re
Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, ¶ 56 and In re Z.Y., 8th Dist.
Cuyahoga No. 86293,
2006-Ohio-300, ¶ 13.
{¶119} If the trial court makes these statutorily required determinations, a
reviewing court will not reverse a trial court’s decision unless it is not supported by
clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and
16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer,
98 Ohio App.3d 189, 195 (3d
Dist.1994), citing In re Adoption of Holcomb,
18 Ohio St.3d 361, 368 (1985) and In
re Adoption of Lay,
25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence
is that which is sufficient to produce in the mind of the trier of fact a firm belief or
conviction as to the facts sought to be established.” In re S.G.,
2015-Ohio-2306, at
¶ 10, citing Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the
syllabus.
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Case Nos. 10-19-10, 11, 12, 13
{¶120} It is not clear which R.C. 2151.414(B)(1) factor the trial court relied
on when it granted permanent custody of C.H. and T.H. to MCDJFS. Compare In
re Esparza, 3d Dist. Marion No. 9-06-25, 2007-Ohio-113, ¶ 30 (“We also note that
the trial court’s journal entry fails to indicate which section of R.C. 2151.414(B) the
trial court applied when it granted permanent custody to MCCSB.”). At the
permanent-custody hearing, the trial court found that C.H. and T.H. had been in the
custody of MCDJFS for 12 or more months. (See June 4, 2019 Tr. at 26). But, the
trial court did not indicate whether that was within a consecutive 22-month period.
In its entry granting permanent custody of C.H. and T.H. to MCDJFS, the trial court
did not explicitly state which R.C. 2151.414(B)(1) factor that it found applicable to
the cases or determine the length of time that C.H. and T.H. had been in the custody
of MCDJFS. The trial court also failed to make a determination that Tiffany or
Tyler abandoned or orphaned C.H. or T.H, or whether C.H. or T.H. had been
adjudicated an abused, neglected, or dependent child on three separate occasions by
any court in this state or another state. Compare In re Esparza at ¶ 30 (“Also, the
trial court failed to make a determination that either Mother or Feliciano abandoned
or orphaned the boys.”).
{¶121} Although there is no requirement that a trial court explicitly reference
R.C. 2151.414(B)(1) in its permanent-custody decision, it must be discernible from
the entry on which factor the trial court was relying. See In re Johnson, 10th Dist.
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Case Nos. 10-19-10, 11, 12, 13
Franklin Nos. 03AP-1264 and 03AP-1265, 2004-Ohio-3886, ¶ 23. Compare In re
Esparza at ¶ 30-33 (concluding that, although the trial court did not indicate which
R.C. 2151.414(B)(1) section it applied in granting permanent custody to the agency,
the trial court applied R.C. 2151.414(B)(1)(a) because the record reflected that the
children were not in the temporary custody of the agency for more than 12 months);
In re Dyal, 4th Dist. Hocking No. 01CA12,
2001 WL 925423, *6 (Aug. 9, 2011),
fn.3 (concluding that “the judgment entry as a whole reflects that the trial court
applied the appropriate statute, R.C. 2151.414” even though the trial court did not
explicitly state that permanent custody would serve the child’s best interests).
Therefore, because the trial court did not find R.C. 2151.414(b), (c), or (e) to be
applicable, we must determine whether the trial court could have applied R.C.
2151.414(B)(1)(a) or (d). Accord In re Esparza at ¶ 30
{¶122} For purposes of R.C. 2151.414(B)(1), “a child shall be considered to
have entered the temporary custody of an agency on the earlier of the date the child
is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is
sixty days after the removal of the child from home.” Id. at ¶ 25. Based on the
record in these specific cases, it appears that the only R.C. 24151.414(B)(1) factor
applicable to this case is R.C. 2151.414(B)(1)(a).15 Specifically, based on the
information contained in this record, C.H. and T.H. were removed from their home
15
The documents related to C.H.’s and T.H.’s initial removal and adjudication in 2018 are not available to
this court in this record.
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Case Nos. 10-19-10, 11, 12, 13
on May 21, 2018, and 60 days after that was July 20, 2018. According to the
information in this record, C.H. and T.H. were adjudicated neglected and dependent
on July 12, 2018. All of those dates are inside 12 months prior to the time the
MCDJFS filed its motions on May 13, 2019 requesting permanent custody of C.H.
and T.H.
{¶123} Therefore, the trial court’s finding at the permanent-custody that
C.H. and T.H. had been in the custody of MCDJFS for 12 or more months hearing
was in error. See In re Franklin, 3d Dist. Marion No. 9-06-12, 2006-Ohio-4841, ¶
15. Nevertheless, the trial court’s erroneous finding at the permanent-custody
hearing is harmless error since the trial court made the necessary finding under R.C.
2151.414(B)(1)(a)—that C.H. and T.H. cannot be placed with either of their parents
within a reasonable time or should not be placed with their parents—in its entry
granting permanent custody of C.H. and T.H. to MCDJFS and the record clearly
and convincingly supports that C.H. and T.H. had not been in the custody of
MCDJFS for 12 or more months of a consecutive 22-month period.16 See id. at ¶
16.
16
From the outset of these cases, the State and the trial court refer to Tyler as the “putative father.” The term
“putative father” is not defined by Chapter 2151; rather, it is defined in Chapter 3107—the chapter relative
to adoptions—as “a man … who may be a child’s father” who (1) “is not married to the child’s mother at
the time of the child’s conception or birth”; (2) has not adopted the child”; (3) “has not been determined,
prior to the date a petition to adopt the child is filed, to have a parent and child relationship with the child by
a court proceeding”; and (4) has not acknowledged paternity of the child.” (Emphasis added.) R.C.
3107.01(H). Although Ohio courts of appeal—including this one—have applied the term as it is defined in
Chapter 3107 to actions under Chapter 2151, I do not think that it is an appropriate application of the term
since the definition of “putative father” under R.C. 3107.01(H) is read in the conjunctive and one of the
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Case Nos. 10-19-10, 11, 12, 13
{¶124} In concluding that C.H. and T.H. cannot be placed with either of their
parents within a reasonable time or should not be placed with their parents, the trial
court found that “both parents have failed to support [C.H. and T.H.] and have failed
to maintain a stable residence and employment. They have made minimal to no
efforts to participate in services Ordered by the Court in a Case Plan to remedy the
cause for removal of the child from the home. And, the parents last visited with the
child in August of 2018.” (Case No. 32019002, Doc No. 40) (Case No. 32019003,
Doc. No 40). Notwithstanding the limited evidence presented by the State at the
permanent-custody hearing (as well as the limited evidence in the record—namely,
the lack of the alleged case plans), I am constrained to conclude that the evidence
presented at trial is sufficient to produce in the mind of the trier of fact a firm belief
or conviction that C.H. and T.H. cannot be placed with the parents within a
reasonable period of time or should not be placed with the parents.17 That is, the
evidence presented at trial rises to the level of clear and convincing evidence
elements of the definition specifically refers to adoption petitions. See, e.g., In re Rumer, 3d Dist. Logan No.
8-97-15, 1998 WL 126070, *5 (Mar. 9, 1998).
17
I am also troubled by the timing of the State’s permanent-custody motion in this case based on the time of
which Tyler was definitively determined to be the natural father of C.H. and T.H. That is, the Mercer County
Child Support Enforcement Agency (“CSEA”) filed motions on March 27, 2019 to establish C.H.’s and
T.H.’s paternity. (Case. No. 32019002, Doc. No. 20); (Case No. 32019003, Doc. No. 20). Before the trial
court journalized its entry establishing Tyler as the natural father of C.H. and T.H., the State filed a motion
seeking permanent custody of C.H. and T.H. Specifically, at a hearing on April 30, 2019, the trial court
determined Tyler to be the natural father of C.H. and T.H.; the State filed its permanent-custody motion on
May 13, 2019; and the trial court journalized its entry establishing paternity on May 17, 2019. (Case No.
32019002, Doc. Nos. 25, 27); (Case No. 32019003, Doc. Nos. 25, 27). The permanent-custody hearing took
place less than 30 days later on June 4, 2019. Accordingly, I am suspicious of the reasonableness of the
decision to grant permanent custody of T.H. and C.H. to MCDJFS with respect to Tyler.
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Case Nos. 10-19-10, 11, 12, 13
supporting the trial court’s R.C. 2151.414(E)(4) finding. Compare In re D.A., 6th
Dist. Lucas No. L-11-1197, 2012-Ohio-1104, ¶ 39 (concluding “that the trial court’s
determination that father’s actions in failing to secure sex offender treatment
demonstrated an unwillingness to provide an adequate permanent home for D.A.
and A.A. within the meaning of R.C. 2151.414(E)(4) is supported by clear and
convincing evidence”). Nevertheless, I do not believe that clear and convincing
evidence was presented at trial supporting a finding under R.C. 2151.414(E)(1).
{¶125} At the permanent-custody hearing, Heidi Duhamel (“Duhamel”), a
caseworker with MCDJFS, testified that C.H. and T.H. were removed from their
home on May 21, 2018. (June 4, 2019 Tr. at 4). Although no case plan exists in
this record, Duhamel testified that she developed a case plan to assist C.H. and T.H.
to be reunited with Tiffany and Tyler. Specifically, Duhamel testified that the case
plan identified “eight items” for Tiffany and Tyler to work on: (1) “continue the
drug and alcohol assessment and the mental health assessment, follow
recommendations, and sign releases of information for service providers”; (2)
“complete parenting classes through Foundations”; (3) “remain free of illegal drugs
and non-prescribed medications or alcohol and not have any at their residence”; (4)
submit to random-drug screenings; (5) “notifying medical providers that they are
required to not take prescription drugs”; (6) “have appropriate income to provide
for the needs of themselves and their children”; (7) “have appropriate housing for
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Case Nos. 10-19-10, 11, 12, 13
themselves and the children”; and (8) “provide the Agency with an address where
they are living and at any time that they move.” (Id. at 13-15). Duhamel testified
that “[t]o the best of [her] knowledge, [Tiffany and Tyler had] not done any of those
services. They [had] not done any drug screens, they [had] not done any
assessments.” (Id. at 17). According to Duhamel, Tiffany and Tyler visited with
C.H. and T.H. on three occasions, August 2, 14, and 21, 2018. In other words,
Duhamel testified that Tiffany and Tyler had virtually no contact with C.H. or T.H.
for nearly ten months as of the date of the hearing. While I (reluctantly) agree that
this evidence clearly and convincingly supports a finding under R.C.
2151.414(E)(4) and, thus, a finding under R.C. 2151.414(B)(1)(a), I do not believe
that this evidence clearly and convincingly supports a finding under R.C.
2151.414(E)(1).
{¶126} Although the lack of clear and convincing evidence supporting a
finding under R.C. 2151.414(E)(1) is not fatal, I must address a related issue—the
trial court’s reasonable-efforts finding—before addressing whether the trial court’s
best-interest determination is supported by clear and convincing evidence. “[T]he
procedures in R.C. 2151.414 do not mandate that the court make a determination
whether reasonable efforts have been made in every R.C. 2151.413 motion for
permanent custody”; however, the trial court must still find that the State made
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Case Nos. 10-19-10, 11, 12, 13
reasonable efforts to reunify the family. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, ¶ 42-43.
No one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio’s child-welfare laws are designed
to care for and protect children, “whenever possible, in a family
environment, separating the child from the child’s parents only when
necessary for the child’s welfare or in the interests of public safety.”
Id. at ¶ 29, quoting R.C. 2151.01(A). “To that end, various sections of the Revised
Code refer to the agency’s duty to make reasonable efforts to preserve or reunify
the family unit.” Id. “For example, R.C. 2151.412 requires the agency to prepare
and maintain a case plan for children in temporary custody with the goal ‘[t]o
eliminate with all due speed the need for the out-of-home placement so that the child
can safely return home.’” Id., quoting R.C. 2151.412. “Under R.C.
2151.413(D)(3)(b), an agency may not file for permanent custody under R.C.
2151.413(D)—the ‘12 months out of 22’ rule—‘[i]f reasonable efforts to return the
child to the child’s home are required under section 2151.419’ and the agency has
not provided the services required by the case plan.” Id., quoting R.C.
2151.413(D)(3)(b), and citing R.C. 2151.414(E)(1) and R.C. 2151.419.
Under R.C. 2151.419, when a trial court
removes a child from the child’s home or continues the removal of a
child from the child’s home, the court shall determine whether the
public children services agency … has made reasonable efforts to
prevent the removal of the child from the child’s home, to eliminate
the continued removal of the child from the child’s home, or to make
it possible for the child to return safely home.
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Case Nos. 10-19-10, 11, 12, 13
R.C. 2151.419(A)(1).
Under certain circumstances, the law dispenses with the duty to make
reasonable efforts to reunify the family. Under R.C. 2151.419(A)(2),
the agency need not make reasonable efforts if the parent from whom
the child was removed has been convicted of or pleaded guilty to
certain criminal offenses, has repeatedly withheld medical treatment
or food from the child, has placed the child at substantial risk on more
than one occasion because of alcohol or drug abuse, has abandoned
the child, or has had parental rights involuntarily terminated with
respect to a sibling of the child at issue.
In re C.F. at ¶ 34.
{¶127} The Supreme Court of Ohio “determined that the trial court is not
obligated, under R.C. 2151.419, to make a determination that the agency used
reasonable efforts to reunify the family at the time of the permanent custody hearing
unless the agency has not established that reasonable efforts have been made prior
to the hearing.” (Emphasis sic.) In re N.R.S., 3d Dist. Crawford Nos. 3-17-07, 3-
17-08, and 3-17-09, 2018-Ohio-125, ¶ 25, citing In re C.F. at ¶ 41, 43.
According to the Ohio Supreme Court, the trial court is only
obligated to make a determination that the agency has made
reasonable efforts to reunify the family at “adjudicatory, emergency,
detention, and temporary-disposition hearings, and dispositional
hearings for abused, neglected, or dependent children, all of which
occur prior to a decision transferring permanent custody to the state.”
In re B.S., 3d Dist. Allen No. 1-15-44, 2015-Ohio-4805, ¶ 36, quoting In re C.F. at
¶ 41.
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Case Nos. 10-19-10, 11, 12, 13
{¶128} In this case, the trial court made equivocal reasonable-efforts
findings. Specifically, in the dispositional entries that are part of this record, the
trial court found that “upon the facts determined at the adjudicatory hearing that
[MCDJFS] made reasonable efforts to prevent the removal of the child from the
home, eliminate removal, or make is [sic] possible for the child to return home.”
(Case No. 32019002, Doc. No. 19); (Case No. 3209003, Doc. No. 19). That finding
contradicts the finding that the trial court made in its adjudication entries. There,
the trial court found that MCDJFS “was unable to make reasonable efforts to
prevent the need for removal of the child from the home, eliminate the need for
removal, or make is [sic] possible for the child to return home.” (Emphasis added.)
(Case No. 32019002, Doc. No. 18); (Case No. 32019003, Doc. No. 18). Since the
trial court’s reasonable-efforts finding is specifically based on “the facts determined
at the adjudicatory hearing,” and the trial court found (based on the facts presented
at the adjudicatory hearing) that MCDJFS was unable to use reasonable efforts, I
believe that the trial court’s reasonable-efforts finding in its dispositional entries is
unsupported by the record and in error.
{¶129} Even assuming that the trial court meant to find that MCDJFS was
unable to prevent removal, eliminate continued removal, or make it possible for
C.H. and T.H. to return home in its dispositional entry, that finding would also be
in error. Determining that MCDJFS was unable to use reasonable efforts to prevent
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Case Nos. 10-19-10, 11, 12, 13
removal, eliminate continued removal, or make it possible for C.H. and T.H. to
return home is not one of the reasonable-efforts findings permitted under R.C.
2151.419. That is, the trial court is required under R.C. 2151.419 to determine
whether MCDJFS used reasonable efforts to reunify the family or whether one of
the enumerated reasons under R.C. 2151.419(A)(2) excuse MCDJFS from using
reasonable efforts to reunify the family. That MCDJFS was “unable” to use
reasonable efforts to reunify the family is not one of those reasons.
{¶130} Accordingly, for the entries granting permanent custody of C.H. and
T.H. to be valid, the trial court was required to make its reasonable-efforts finding
in its permanent-custody entry. It did not. Therefore, I would conclude the trial
court’s decision granting permanent-custody of C.H. and T.H. to MCDJFS is in
error and should be reversed.
{¶131} Further compounding the error in granting permanent custody of
C.H. and T.H. to MCDJFS in this case is the trial court’s best-interest finding under
R.C. 2151.414(D). Here, the trial court found that granting permanent custody of
C.H. and T.H. to MCDJFS was in their best interest because “there is a suitable an
[sic] adoptive home presently being explored, this being the foster home of the
child[ren] since [their] removal from the parent.” (Case No. 32019002, Doc No.
40); (Case No. 32019003, Doc. No. 40). The adoptability of C.H. and T.H. is not
one of the best-interest findings provided by R.C. 2151.414(D). See In re T.R., 120
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Case Nos. 10-19-10, 11, 12, 13
Ohio St.3d 136,
2008-Ohio-5219, ¶ 14 (noting that the adoptability best-interest
factor was removed from R.C. 2151.414(D)); In re Barker, 2d Dist. Champaign No.
20001,
2000 WL 775638, *4 (June 16, 2000) (“R.C. 2151.414(D), as amended in
1996, does not require a trial court to consider the adoptability of a child in deciding
whether it is in the child’s best interests to award permanent custody of the child to
a children services agency.”). Our sister appellate districts have concluded that a
trial court’s consideration of a child’s adoptability in its best-interest analysis can
be harmless error if it is one of many factors considered by the trial court.18 See In
re Barker at *4. See also In re T.A., 9th Dist. Lorain No. 13CA010439, 2013-Ohio-
5646, ¶ 10. The trial court did not make any alternative best-interest findings.
Accordingly, I would conclude that the trial court failed to make the statutorily-
required best-interest finding.
{¶132} For these reasons, I would reverse the trial court’s orders granting
permanent custody of C.H. and T.H. to MCDJFS.
18
Although the adoptability of the child is not specifically a best-interest factor under R.C. 2151.414(D), and
a trial court may consider it as a relevant factor in addition to the enumerated best-interest factors, no adoption
plan is included in this record. The only evidence presented supporting the apparent adoption plan is
Duhamel’s testimony that she had adoption plans for C.H. and T.H. (See June 4, 2019 Tr. at 19-20).
-75-
