[Cite as In re E.S. , 2020-Ohio-6708.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: E.S. C.A. No. 29776

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 18 02 0135

DECISION AND JOURNAL ENTRY Dated: December 16, 2020

CALLAHAN, Presiding Judge. {¶1} Appellant Mother appeals the ju dgment of the Summit County Cour t of Common Pleas, Juvenile Division, that accepted her voluntary relinquis hment of her parental rights, terminated the parents’ parental rights, and placed the child E .S. in the permanent custody of appellee Summit County Children Ser vices Board (“CSB” or “the a gency”). This Court affirms.

I. {¶2} Mother is the biological mothe r of E.S. (d.o.b. 2/11/18). Pate rnity has not been

established. {¶3} Mother tested positive for multiple drugs, including cocaine an d opiates, at the child’s birth at 27 weeks’ gestation. The following day, Mothe r required aortic valve replacement surgery. She remained intubated and sedated in the intensive c are unit, while E.S. was in the

neonatal intensive care unit.2

{¶4} Within days of the child’s birth, CSB filed a complaint allegin g that she was dependent pursuant to R.C. 2151.04( B), (C), and (D). The agenc y alleged that Mother had significant medical and mental h ealth issues, as well as drug a nd criminal histories; that two other of Mother’s children had previous ly been removed based on Mothe r’s drug use; and that no one

was available to make decisions on behalf of the child. As Mot her was then in a coma, and paternity had not been established, E.S. was placed in the emer gency temporary custody of her maternal grandmother under an ord er of protective supervision o n request of the agency. When

the child was to be released from the hospital two months later , however, CSB requested and was granted an emergency order of temporary custody to the maternal great grandmother under the agency’s protective supervisi on. Mother agreed to this change. {¶5} At the adjudicatory hearing, Mothe r stipulated to a finding of dependency pursuant to R.C. 2151.04(C), and the agency dismissed its remaining two allegations of dependency. At the dispositional hearing, Mother stipulated that the child wou ld be placed in the temporary custody of the maternal great gra ndmother with protective super vision by CSB. The juvenile court granted Mother supervised vis itation and adopted the agency’s c ase plan as an order. {¶6} As the case progressed, Mother w as cooperative and compliant wi th her case plan objectives. CSB initiated unsupervised visitation and later mo ved to return E.S. to Mother’s legal custody under its protective supervision. After the child had been in Mother’s legal custody for two and a half months, CSB moved to terminate its protective su pervision based on Mother’s sustained sobriety and progress in achieving her case plan goal s. The guardian ad litem agreed with the agency’s motion. {¶7} Immediately thereafter, however, Mother relapsed into ongoing c ocaine use. The child was again removed from Mother’s care, and supervised visi ts were reinstated. Unfortunately,3

as Mother continued to abuse drug s and exhibit other problemati c behaviors, and as no approved caregiver was available or willing to assume custody of E.S., C SB filed a motion for permanent custody. {¶8} As to the first prong of the permanent custody test, the agency alleged that E.S.

could not or should not be return ed to her parents on the basis of five R.C. 2151.414(E) grounds. As part of its best interest argu ment, CSB alleged that Mother had put the child at substantial risk of harm two or more times due to her drug abuse issues, and tha t Mother had refused to participate in treatment two or more times after being ordered to do so und er the case plan. See R.C. 2151.414(D)(1)(e). Mother filed a motion requesting, alternati vely, legal custody, legal custody with protective supervision, or legal custody to her boyfriend. The guardian ad litem filed a report recommending that an award of per manent custody was in the chil d’s best interest. {¶9} The matter proceeded to a hearing on the pending dispositional motions. Mother was not present at the start of the hearing. Her attorney info rmed the court that Mother thought the hearing was later and that she would arrive in half an hour . Mother’s attorney requested legal custody to a third party on Mother’s behalf. While waiting for Mother to arrive, the judge heard the testimony of the various records custodians whom CSB called as witnesses. {¶10} When Mother still failed to appear in person, her attorney requ ested that Mother be allowed to attend the hearing by phone via Zoom access, with au dio only because Mother had no video capability pursuant to her telecommunications plan. Afte r verifying Mother’s phone number with her attorney, the judge admitted Mother to the hearing by audio appearance. Mother verified that she could hear the proceedings and she agreed to mute her phone unless she needed to inform

the court that she could not hear.4

{¶11} After CSB presented the testimony of its next witness, and Moth er’s attorney had the opportunity for cross-examina tion, the trial court then too k a brief recess. The judge told Mother to stay on the line. {¶12} After the recess, Mother’s attorney informed the court that Mot her wished to relinquish her parental rights to E.S. The attorney asserted t hat she had explained everything to

Mother a few times and that she believed that Mother understood . The attorney requested that Mother be permitted to relinqui sh over the phone. The judge st ated that she would go over the waiver of rights form with Mother over the phone and accept her assent unless there was any objection. When no party objected, t he juvenile court judge en gaged in a lengthy discussion with Mother regarding her rights a nd the ramifications of a voluntar y surrender. Thereafter, the juvenile court accepted Mother’s relinquish ment of her parental rights. {¶13} Before proceeding with additional testimony regarding any alleg ed father, the juvenile court again addressed Mo ther by name to see if she was still on the line. Mother responded that she was. The juvenile court told Mother that she was free to stay on the phone or disconnect, as she wished. Mother informed the court that she was going to disconnect so she could call her boyfriend, who had had a signifi cant relationship with the chil d, to let him know how the matter was resolved. In conclusion, Mo ther thanked everyone for their time and for “making sure that [the child’s] all right.” {¶14} CSB continued its case-in-chief and presented the testimony of the agency caseworker. The guardian ad litem gave her report on the recor d, recommending permanent custody in the best interest of the child. The foster mother w as permitted to make a statement by phone.5

{¶15} Thereafter, the juvenile court issued its judgment. It found t hat the child could not or should not be returned to her parents because her father had abandoned E.S. and Mother had voluntarily surrendered her pare ntal rights. Further finding t hat it was in the best interest of the child, the juvenile court granted CSB’s motion for permanent cu stody. Mother filed a timely appeal and raises one assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PLAIN ERROR BY ACCEPTING A RELINQUISHMENT WITHOUT SWEARING IN MOTHER OR PROPERLY DETERMINING IT WAS GIVEN INTELLIGENTLY, VOLUNTARILY, AND KNOWINGLY. {¶16} Mother argues that the juvenile court committed plain error by accepting her relinquishment of parental rights. Specifically, Mother assign s error to the juvenile court’s failures to place her under oath, verify h er identity, and determine tha t Mother’s relinquishment was made intelligently, voluntarily, and knowingly. This Court disagree s. “In the criminal context, plain error does not exist unless it can be said that but for the error, the outcome of the tr ial would have been different a nd that reversal is necessary to prevent a manifest miscarriage of justice. State v. White , 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 57. The civil plain error standard may be applied only in the extremely rare case invol ving exceptional circumstances where error, to which no objection was made at the trial court, seriously affec ts the basic fairness, integrity, or public reputation of the judicial process, thereb y challenging the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson , 79 Ohio St.3d 116 (1997), syllabus.”

In re K.J. , 9th Dist. Summit No. 29149, 2019-Ohio-123, ¶ 10, quoting In re S.G. , 9th Dist. Summit No. 27428, 2015-Ohio-2503, ¶ 11. As this Court has written for a number of years, we have not yet determined which plain error standard applies in juvenile d ependency, neglect, and abuse

cases. In re K.J. at ¶ 11, citing In re K.C. , 9th Dist. Lorain No. 17CA011135, 2017-Ohio-8779, ¶6

29. We need not make that determination in this case because M other has failed to demonstrate any error by the juvenile court. {¶17} In cases involving a parent’s relinquishment of rights, this Co urt has recognized the following: “[T]here is no legislative guidance on the requirements for a v oluntary surrender of parental rights in juvenile court where the child has been adju dicated [abused,] neglected[,] or dependent.” In re B.Y. , 9th Dist. Wayne No. 16AP0071, 2017-Ohio833, ¶ 10. Nevertheless, because parents have a constitutional right to raise their children, “due process requires th at a parent’s surrender of pa rental rights must reflect fundamental fairness, b e made with full knowledge of th e parent’s rights and the consequences that will follo w, and be knowing, intelligent, and voluntary.” Id. at ¶ 14. To satisfy this standard, a parent’s relinquishment o f parental rights must include “a ‘meaningful dialogue ’ between the trial judge and [p arent] to ensure that [the parent] understood the rights and the consequences involve d in such a decision[.]” Id. at ¶ 26, quoting In re Terrence-Jamison , 162 Ohio App.3d 229, 2005-Ohio-3600, ¶ 89 (6th Dist.).

In re B.W. , 9th Dist. Wayne No. 18AP0034, 2018-Ohio-4544, ¶ 7. {¶18} Mother argues error due to the juvenile court’s failure to firs t place her under oath prior to discussing her relinquish ment of parental rights, but cites no legal authority in support. This Court has found no authority for Mother’s proposition. Mo reover, we have never recognized such a requirement. Accordingly, the juvenile court did not er r when it did not place Mother under oath prior to accepting her volunt ary surrender of parental rig hts. {¶19} In addition, although Mother implie s error based on the juvenil e court’s failure to ensure that Mother execute a written waiver of her parental rig hts, she again cites no authority for her proposition. As previously noted, while the juvenile court must engage in a “meaningful dialogue” with the parent, see In re B.W., supra , this Court has never recognized a legal requirement for the execution of a written relinquishment of pa rental rights. Mother has not persuaded us to change that position.7

{¶20} Mother next argues that she did not relinquish her parental rig hts in a knowing, intelligent, and voluntary manner . The record belies this argu ment. {¶21} Mother was properly served with notice of the permanent custody hearing; and she indicated, through counsel, her intention to attend the lower c ourt proceedings. After mistaking the time for the hearing and later losing her pre-arranged tran sportation to the courthouse, Mother requested, through counsel, to a ttend the hearing remotely via Zoom as authorized pursuant to Covid-19 protocols of the court. Because Mother had only talk and texting capabilities on her phone plan, however, her attorney requested that Mother be allo wed to attend the hearing solely by audio. After verifying Mother’s phone number with counsel, the juvenile judge admitted Mother to the hearing via Zoom on Mother’s request and without objection by any other party. Mother responded to her name and acknowledged that her connecti on was good and that she could hear the proceedings. {¶22} Mother was present by audio a nd represented by counsel who was present in the courtroom for the complete testimony of her Community Health Ce nter treatment counselor who testified, in part, that Mother relapsed into cocaine use in ea rly October 2019, and tested positive for drugs every week with one exception through the date of the hearing in June 2020. After the counselor’s testimony concluded, the trial court took a brief r ecess, although Mother remained connected to the proceedings by phone. During the recess, Moth er had the opportunity to confer with her attorney. {¶23} After the recess, Mother’s attorney informed the court that Mot her wished to voluntarily relinquish her parental rights after the two had th e opportunity to discuss the matter. Thereafter, the juvenile court judge engaged in a lengthy and v ery detailed colloquy with Mother. The judge explained all of Mother’s hearing rights, including, but not limited to, her rights to8

present evidence and the testimo ny of witnesses; to subpoena wi tnesses; to testify or decline to testify on her own behalf; to hol d CSB to its burden of proof b y clear and convincing evidence and in compliance with the Ohio Rules of Evidence; and to appeal th e trial court’s judgment. The juvenile judge further explained the consequences of Mother’s w aiver of her rights, including, but not limited to, her forfeiture of the above rights; and the ter mination of her legal status as the child’s mother, including the rights to visitation, to consent to adoption, and to determine the child’s religious affiliation, as well as the obligation to pay child support. The judge clarified that the juvenile court could not make any guarantees regarding the adoption of the child, and that Mother would not receive any notice regarding any adoption proc eedings in the probate court. {¶24} After each explanation by the j uvenile court, Mother asserted t hat she understood. In addition, Mother assured the judge that no one had threatene d or promised her anything to persuade her to voluntarily surre nder her parental rights, that she had had the opportunity to discuss her options fully with her attorney, that she was not under the influence of any drugs or alcohol, and that her ability to think clearly and make decisions was no t being adversely affected by any

medications she was or was not t aking at the time. The judge s pecifically asked Mother if she believed that she was waiving her rights and making the decisio n to relinquish her parental rights in a knowing, voluntary, and in telligent manner. Mother assert ed that she was. Based on a thorough review, this Court conc ludes that the record reflects that Mother’s relinquishment of her parental rights was indeed know ingly, voluntarily, and intellig ently made. {¶25} The juvenile judge accepted the voluntary surrender of parental rights by the person reasonably demonstrated to be Mot her. Mother never left her au dio connection with the court as evidenced by the juvenile court’s not having to re-admit her to the hearing via telephone. Mother’s attorney verified that the phone number used by the parent to c onnect to the hearing belonged to9

Mother. Neither Mother’s attorney nor the guardian ad litem, b oth of whom had met and talked with Mother on prior occasions, indicated that the person purpo rting to be Mother on the phone did not sound like Mother. Mother answered when addressed by n ame by the juvenile judge. In addition, Mother referred to her boyfriend by name, the child’s circumstances, and the foster mother with a familiarity evidencing that the speaker was in fa ct Mother. {¶26} Although Mother implies that she was not the person who phoned in to the hearing, she does not allege on appeal that she or her attorney perpetra ted a fraud upon the juvenile court. Neither does this Court recognize any evidence of such egregiou s conduct. Mother’s assignment

of error is overruled.

III. {¶27} Mother’s sole assignment of error is overruled. The judgment o f the Summit County Court of Common Pleas, J uvenile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to10

mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

LYNNE S. CALL AHAN FOR THE COURT

HENSAL, J. CONCURS. CARR, J. CONCURRING. {¶28} I concur with the majority’s opinion, but I write separately to emphasize that a trial court should thoroughly verify the identity of a parent appeari ng remotely by audio, especially in circumstances of this magnitude. For example, the court could inquire of the parent as to the parent’s address, birthdate, or o ther personal information, whi ch could be verified by the court’s

own record. {¶29} Nevertheless, in the absence of such additional inquiry, the re cord in this case demonstrates that the juvenile c ourt reasonably verified Mother ’s identity and no objection was made as to the speaker on the phone. Under these circumstances , no error existed in the trial court’s acceptance of Mother’s r elinquishment of her parental r ights regarding E.S.

APPEARANCES: DENISE E. FERGUSON, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee. JOSEPH KERNAN, Guardian ad Litem.