[Cite as In re D.D. , 2019-Ohio-4646.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF:

D.D. A Dependent Child JUDGES: Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

Case No. CT2019-0025

O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 21730238

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 8, 2019

APPEARANCES: For Appellee For Appellant

D. MICHAEL HADDOX MICHAEL J. CONNICK PROSECUTING ATTORNEY MICH AEL J. CONNICK CO., LPA GERALD V. ANDERSON, II 301 Main Street ASSISTANT PROSECUTOR Suite H 27 North Fifth Street Zanesville, Ohio 43701 Zanesville,Ohio 43701Muskingum County, Case No. CT2019-0025 2

Wise, J. {¶1} Appellant Jacqueline S. appeals the decision of the Muskingum C ounty Court of Common Pleas, Juvenile Division, which granted permane nt custody of her daughter, D.D., to Appellee Muskingum County Children Services (“MCCS”). The relevant facts leading to this appeal are as follows. {¶2} On November 6, 2017, Appellee MCCS filed a complaint in the tri al court alleging that D.D., born November 2017, was neglected and/or de pendent. Initial concerns were that appellant had tested positive for methamphet amine, cocaine, and marijuana upon admission to the maternity unit. Appellant was a lso reported to have several mental health issues. The man who was alleged at the ti me to be D.D.’s father, Jason D., was alleged to have a lengthy criminal record and a h istory of abusive treatment of appellant. 1 {¶3} The trial court thereupon ordered the child into the temporary custody of

MCCS. {¶4} A case plan was filed with the trial court on December 6, 2017, with no objections thereto. D.D. was adjudicated a dependent and neglec ted child on February 1, 2018. The court ordered her to be maintained in the temporar y custody of MCCS. {¶5} On July 23, 2018, MCCS filed a motion for permanent custody, wh ich was scheduled for a hearing on December 18, 2018. In the meantime, on November 5, 2018, the court conducted an annual review hearing; however, appellan t did not appear.

1 On February 23, 2018, MCCS notified the trial court that Jas on D. had been excluded as the child’s father by genetic testing. Paternity of the chil d is apparently still unknown.Muskingum County, Case No. CT2019-0025 3

{¶6} At the permanent custody trial on December 18, 2018, appellant again failed to appear. Following the hearing, the court granted permanent c ustody of D.D. to MCCS,

as further discussed infra . A written judgment entry was journalized on March 5, 2019. On April 4, 2019, appellant filed a notice of appeal. She herei n raises the following sole Assignment of Error: {¶7} THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

I. {¶8} In her sole Assignment of Error, appellant-mother contends the trial court erred in granting permanent custody of D.D. to the agency. We d isagree. {¶9} R.C. 2151.414(B)(1) states as follows: Except as provided in division (B)(2) of this section, the cou rt may grant permanent custody of a child to a movant if the court det ermines at the hearing held pursuant to division (A) of this section, by c lear and convincing evidence, that it is in the best interest of the chi ld to grant permanent custody of the child to the agency that filed the mot ion for permanent custody and that any of the following apply: (a) The child is not abandoned or orphaned, has not been in t he temporary custody of one or more public children services agenc ies or private child placing agencies for twelve or more months of a c onsecutive twenty-two-month period, or has not been in the temporary custo dy of one or more public children services agencies or private child plac ing agencies for twelve or more months of a consecutive twenty-two-month per iod if, asMuskingum County, Case No. CT2019-0025 4

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, and the child cannot be placed with either of th e child's parents within a reasonable time or should not be placed with t he 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 mor e public children services agencies or private child placing agen cies 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 public children se rvices agencies or private child placing agencies for twelve or more m onths of a consecutive twenty-two-month period and, as described in divisi on (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. (e) The child or another child in the custody of the parent o r parents from whose custody the child has been removed has been adjudica ted an abused, neglected, or dependent child on three separate occasio ns by any

court in this state or another state. {¶10} For the purposes of division (B)(1) of this section, a child sh all be considered to have entered the temporary custody of an agency on the earli er of the date the childMuskingum County, Case No. CT2019-0025 5

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. {¶11} Furthermore, in determining the best interest of the child in p ermanent custody cases, R.C. 2151.414(D)(1) states the trial court must consider all relevant factors, including, but not limited to: (1) the interaction and interrelationship of the child with the child's parents, siblings, relatives, foster parents a nd out-of-home providers, and any other person who may significantly affect the child; (2) th e 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; (3) the custodial history of the child; and (4) the child's need for a legally secure permanent placement. {¶12} Because custody issues are some of the most difficult and agoni zing decisions a trial judge must make, he or she must have wide lat itude in considering all

the evidence and such a decision must not be reversed absent an abuse of discretion. Davis v. Flickinger (1997), 77 Ohio St.3d 415, 418, 674 N.E.2d 1159, citing Miller v. Miller (1988), 37 Ohio St.3d 71, 74, 523 N.E.2d 846. As an appellate c ourt, we are not the trier of fact; instead, our role is to determine whether there is rel evant, competent, and credible evidence upon which the factfinder could base his or h er judgment. Tennant v. Martin–Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, ci ting

Cross Truck v. Jeffries , 5th Dist. Stark No. CA–5758, 1982 WL 2911. {¶13} As noted in our recitation of the facts, the trial court conduc ted the permanent custody trial in this matter on December 18, 2018. MC CS called as its witnesses (1) Cinda Graham from All Well Behavioral Health, (2) MCCS Caseworker Carly Bates, and (3) D.D.’s foster mother. Appellant was not pr esent for the trial, and herMuskingum County, Case No. CT2019-0025 6

trial attorney did not object to any of the testimony or report s presented by MCCS. 2 Where no objection is raised to a line of questioning, an appel lant waives all but plain

error. Ralph v. Behr , 5th Dist. Richland No. 16 CA 42, 2017-Ohio-1533, ¶ 31, citing Harper v. Roberts , 173 Ohio App.3d 560, 2007–Ohio–5726, ¶ 9 (8th Dist. Cuyahoga)

. Plain error review is not favored in appeals of civil cases. Kirin v. Kirin , 7th Dist. Mahoning No. 08 MA 243, 2011–Ohio–663, 2011 WL 497080, ¶ 19, quoting Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), at paragraph one of the syllabus. To constitute plain error in a civil case, the error must be “obvi ous and prejudicial” and “if permitted, would have a material adverse effect on the characte r and public confidence in judicial proceedings.” In re M.H. , 5th Dist. Fairfield No. 2016 CA 43, 2017-Ohio-1110, ¶ 24, citing Friedland v. Djukic , 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th Dist.). We will herein proceed under a pla in error standard of review. {¶14} Appellant’s brief at several points criticizes the agency’s han dling of this matter, while ignoring the evidence that appellant did not visi t with D.D. after February 2018 (Tr. at 12), and, in her last known contact with the agenc y in March 2018, had informed caseworkers that she was not willing to work with them on any services and did not want to reunify with the child. Tr. at 21. Information was provided to the court at the permanent custody trial that she had possibly relocated to New York or Florida. Tr. at 22-23. The child’s maternal grandmother was, for a time, assess ed for relative

2 The trial court specifically found that appellant and the un known father were “duly and properly served.” Judgment Entry, March 5, 2019, at 1. Appellan t nonetheless makes the assertion in her statement of the case that she did not receive notice of the trial date. See Appellant’s Brief at 5. However, a question of personal jurisdi ction may not be raised for the first time on appeal. Trilogy Health Services, LLC v. Frenzley , 5th Dist. Muskingum No. CT2017-0070, 2018-Ohio-1790, ¶ 8, citing In re Bailey Children, 5th Dist. Stark No. 2004CA00386, 2005–Ohio–2981.Muskingum County, Case No. CT2019-0025 7

placement, but the grandmother eventually withdrew from conside ration. Tr. at 19. Evidence was also adduced that appellant had begun her assessme nts and drug screens, but then failed to follow through with treatment and d id not successfully complete any objective on her case plan. Tr. at 17. Likewise, C inda Graham from All Well Behavioral recalled that after November 28, 2017, appellan t “kept cancelling and not showing” and thus did not complete her recommended substanc e abuse and mental health programs. Tr. at 7-8. {¶15} We note that “*** courts have f ound an implied exception to man datory case planning efforts when those efforts would be futile.” In re Leitwein , 4th Dist. Hocking No. 03CA18, 2004-Ohio-1296, ¶ 30. Appellant essentially now chooses to reprove the agency in a situation where she ultimately showed no interest i n the agency’s

reunification efforts. She seems to fault the caseworker who to ok over in April 2018 for not having contact with her, and then resorts to classifying th e utilization of this caseworker as a witness by the agency as “an unbelievable displ ay of mind-numbing laziness ***.” Appellant’s Brief at 8. Additionally, with no le gal support, appellant attempts to dismiss the entirety of the GAL’s report as inadmissible hea rsay. Id. {¶16} However, in this instance, we are persuaded that the trial cour t, relying on R.C. 2151.414(B)(1)(a), 2151.414(D)(1), and 2151.414(E), duly h eard the evidence and rendered a cogent, lawful decision accordingly. Upon review of the record and the findings of fact and conclusions of law therein, we find no bas is to alter the decision of the trier of fact, and we conclude the grant of permanent custo dy of D.D. to MCCS was made in the consideration of the child's best interests, was no t against the manifest weight of the evidence, and did not constitute plain error.Muskingum County, Case No. CT2019-0025 8

{¶17} Appellant's sole Assignment of Error is therefore overruled. {¶18} For the foregoing reasons, the judgment of the Court of Common Pleas, Juvenile Division, Muskingum County, Ohio, is hereby affirmed.

By: Wise, J. Gwin, P. J., and Delaney, J., concur.

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