[Cite as In re S.D-S, 2024-Ohio-255.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE S.D-S., :

: No. 113010

Minor Child :

:

[Appeal by Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: January 25, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case No. AD-20-903409

Appearances:

Dunham Law, LLC, and Michael P. Dunham, for 

appellant. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Joseph C. Young, Assistant Prosecuting 

Attorney, for appellee. 

KATHLEEN ANN KEOUGH, A.J.:

Appellant-Mother (“Mother”) appeals from the juvenile court’s 

decision awarding permanent custody of her minor child, S.D-S., to the Cuyahoga 

County Division of Children and Family Services (“CCDCFS” or the “agency”) after 
a hearing on the agency’s motion to modify temporary custody to permanent 

custody. After a careful review of the record, we affirm the juvenile court’s decision. 

I. Sufficiency and Manifest Weight of the Evidence

In her first assignment of error, Mother contends that the juvenile 

court’s judgment was not supported by clear and convincing evidence 

demonstrating there were adequate grounds to grant permanent custody and that 

the decision was therefore against the manifest weight of the evidence. She also 

contends that the juvenile court’s judgment violated her due process rights. 

A. R.C. 2151.414 Factors

Pursuant to R.C. 2151.414, a juvenile court may grant permanent 

custody of a child to an agency if, after a hearing, the court determines by clear and 

convincing evidence that one of the factors enumerated in R.C. 2151.414(B)(1)(a) 

through (e) applies, and that an award of permanent custody is in the child’s best 

interest. Clear and convincing evidence is evidence that produces in the mind of the 

trier of fact a firm belief or conviction as to the facts sought to be established. In re 

T.B., 8th Dist. Cuyahoga No. 99931, 2014-Ohio-2051, ¶ 28. 

The proper standards of review to apply in cases involving a juvenile

court’s decision under R.C. 2151.414 to award permanent custody of a child and to 

terminate parental rights are the sufficiency-of- the-evidence and manifest-weightof-the-evidence standards, depending on the nature of the arguments raised by the 

parties. In re Z.C., 2023-Ohio-4703, ¶ 18. Sufficiency of the evidence is a test of 

adequacy, while weight of the evidence depends on its effect in inducing belief. Id.
at ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 

When applying a sufficiency-of-the-evidence standard, a reviewing court should 

affirm a trial court when the evidence is legally sufficient to support the jury verdict 

or trial court judgment as a matter of law. Id. at ¶ 13. When reviewing for manifest 

weight, “the appellate court must weigh the evidence and all reasonable inferences, 

consider the credibility of the witnesses, and determine whether, in resolving 

conflicts in the evidence, the finder of fact clearly lost its way and created such a 

miscarriage of justice that the judgment must be reversed and a new trial ordered.” 

Id. at ¶ 14, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 

N.E.2d 517, ¶ 20. 

As reflected in its judgment entry granting permanent custody, upon 

considering the R.C. 2151.414(B)(1) factors, the juvenile court found that S.D-S. had 

been in agency custody for 12 or more months of a consecutive 22-month period 

(R.C. 251.414(B)(1)(d)). This finding is supported by the record, which reflects that 

S.D-S. was removed from Mother’s care in December 2019, shortly after she was 

born, and remained in agency custody continuously since that time. Indeed, Mother 

does not contest the trial court’s “12-of-22” finding or its applicability to this matter. 

(Mother’s brief, p. 15.) 

The juvenile court also found that S.D-S. cannot be placed with either 

of her parents within a reasonable time or should not be placed with either parent. 

(R.C. 2151.414(B)(1)(a)). In order to make this finding, the juvenile court was 

required to find that one or more of the factors set forth in R.C. 2151.414(E) was
applicable. The juvenile court found pursuant to R.C. 2151.414(E)(1) that following 

the placement of S.D-S. outside the home, and notwithstanding reasonable case 

planning and diligent efforts by the agency, the parents had failed continuously and 

repeatedly to substantially remedy the conditions that caused S.D-S. to be placed 

outside the home. 

The court also found pursuant to R.C. 2151.414(E)(2) that Mother has 

a chronic mental illness that is so severe that it renders her unable to provide an 

adequate, permanent home for S.D-S. at the present time and within one year after 

the hearing on the matter. The court also found that Father (who has not appealed 

the juvenile court’s judgment) has a chronic chemical dependency that makes him 

unable to provide an adequate, permanent home for S.D-S. at the present time or 

within one year after the hearing. 

The juvenile court further found pursuant to R.C. 2151.414(E)(4) that 

both parents had demonstrated a lack of commitment to S.D-S. and an 

unwillingness to provide a permanent home for her; Mother by failing to regularly 

support, visit, or communicate with the child, find stable housing, and complete her 

case plan; and Father by his unwillingness to provide space in his home for the child 

to live. 

Mother does not contest any of these findings. Rather, she challenges 

the trial court’s “best interest” determination. 
B. Best Interest Determination 

Having determined pursuant to R.C. 2151.414(B)(1)(d) that S.D-S. 

had been in agency custody for 12 of 22 months of a consecutive period, and 

pursuant to R.C. 2151.414(B)(1)(a) that S.D-S. could not be placed with either parent 

within a reasonable time or should not be placed with either parent, the trial court 

was then required to make a “best interest” determination pursuant to R.C. 

2151.414(D). 

R.C. 2151.414(D)(1) requires that in determining the best interest of 

the child, the court must consider all relevant factors, including but not limited to

those listed in R.C. 2151.414(D)(1). Although a trial court is required to consider 

each of the R.C. 2151.414(D)(1) factors in making its permanent custody 

determination, “there is not one element that is given greater weight than the 

others.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. 

Further, this court has stated that only one of the enumerated factors needs to be 

resolved in favor of the award of permanent custody. In re T.B., 8th Dist. Cuyahoga 

No. 110130, 2021-Ohio-2448, at ¶ 25, citing In re Moore, 8th Dist. Cuyahoga No. 

76943, 2000 Ohio App. LEXIS 3958, 12 (Aug. 31, 2000). 

In its judgment entry granting permanent custody to the agency, the 

juvenile court noted that upon considering the R.C. 2151.414(D)(1) factors —

including S.D-S.’s relationship with her parents and foster caregivers, her wishes as 

set forth by her guardian ad litem (“GAL”), her custodial history, and her need for a 

legally secure placement — the court found by clear and convincing evidence that a 
grant of permanent custody was in S.D-S.’s best interest. Our review demonstrates 

that the record supports the juvenile court’s determination.

The record reflects that following the child’s removal, the agency 

developed case plans for both Mother and Father, with the goal of reunification. 

Mother was referred for mental health services, but during the course of the 

proceedings was not compliant with those services. The agency’s caseworker 

testified at the permanent custody hearing that Mother did not engage in mental 

health services or consistently take her medication from October 2022 through 

January 2023, and only sporadically engaged in mental health services from 

January through April 2023. At the time of trial in June 2023, Mother still had not 

been consistently attending mental health appointments or taking her medication. 

She was also inconsistent in communicating with her caseworker, despite the 

caseworker’s efforts to contact Mother to discuss case plan services and arrange for 

home visits. Mother also failed to maintain stable and adequate housing during the 

proceedings. She had periods of incarceration, as well as commitments to mental 

health hospitals, during the proceedings, and resided intermittently with her mother 

and the child’s father. At the time of trial, she was living in a shelter. 

The caseworker testified that Mother had made only limited progress 

on her case plan objectives, still needed to establish stable housing, and was 

inconsistent in addressing her mental health issues, noting that Mother “would go 

months at a time without addressing her mental health.” The caseworker testified 

that given this demonstrated lack of progress, the agency did not believe that Mother 
would resolve these issues in the foreseeable future, explaining that “the child’s been 

in agency custody for a little over three and a half years and throughout that time 

[Mother] has not consistently addressed her mental health.” The caseworker 

testified that even in the month prior to trial, Mother had cancelled or “no-showed” 

several appointments for mental health services. 

The caseworker testified further that Mother did not consistently take 

advantage of opportunities to visit S.D-S., and even when she did have visits with 

the child, her interaction with the child was limited. When she was living with 

Father, Mother would often sleep during the child’s regular visits at Father’s home. 

The caseworker testified that Father was referred to services to 

address concerns regarding his substance abuse and the appropriateness of housing

for the child, but did not follow through with a referral for a drug assessment. She 

testified further that despite her efforts to have him submit to drug testing so he 

could be considered as a potential candidate to care for S.D-S., Father was “very 

evasive” and “very aggressive verbally.” She said that Father did not want to speak 

with her and was not willing to participate in any services. She said that S.D-S. had 

weekly two-hour visits with Father in his home, but these visits were never increased 

because Father would not submit to drug screens. The caseworker said that she 

repeatedly asked Father to take the steps necessary to demonstrate his ability to care 

for S.D-S. long term, but he refused all her efforts from July through December 

2022. 
The caseworker testified that Father lived in a home with his mother 

and although he claimed to have access to the upstairs unit of the home where he 

lived, he never allowed the caseworker to inspect that unit, which Father said needed 

some remodeling, to determine its suitability. The caseworker said that when she 

visited Father’s home on June 6, 2023, shortly before trial, he still had not obtained 

a bed for the child and although Mother, who sometimes lived with Father, had 

moved to the shelter, her belongings were still in the bedroom, so there was no room 

for S.D-S. in the home. 

S.D-S.’s maternal grandmother testified that S.D-S. had been living 

with her for about three years at the time of trial. She described Mother’s mental 

health struggles that led to her hospitalization in 2017 and the loss of custody of her 

two older children. She said she had tried to assist Mother with her mental health 

struggles since 2017, noting that Mother had been hospitalized for mental health 

issues at least two times a year, and that her last such hospitalization was in 2022. 

She said she had observed Mother’s erratic behavior, unclear thinking, and lack of 

medication compliance, and testified that based on her experience and knowledge 

of Mother’s issues, she did not believe that Mother was capable of providing 

appropriate care for S.D-S. Despite her misgivings about Mother and Father, the 

grandmother testified that she would allow Mother and Father to have continued 

contact with S.D-S. if their visits did not put her or S.D-S.’s welfare at risk. 

The agency caseworker testified that CCDCFS was seeking permanent 

custody because Mother did not have stable housing and had not been consistently 
addressing her mental health issues or completing her case plan, and Father had not 

shown that he was committed to S.D-S. She said that S.D-S. had been living with 

her grandmother since June 2020, was bonded with her, and was able to see her 

siblings every two weeks at her grandmother’s house. 

The child’s GAL recommended that it would be in S.D-S.’s best 

interest to grant permanent custody to the agency. The GAL noted that S.D-S. had 

spent about 75 percent of her life with her maternal grandmother and was “thriving” 

in the grandmother’s home. The GAL also noted that although S.D-S. looked 

forward to visits with her father, Father had demonstrated a lack of commitment to 

the child because “after three and a half years, if you can’t follow through, for 

whatever the reason may be, you’re not committed to this child as her primary 

caregiver.” 

On this record, we find that the trial court’s determination that 

permanent custody is in S.D-S.’s best interest is supported by clear and convincing 

evidence. Father offered no evidence at trial to rebut any of the agency’s evidence, 

and although Mother testified in her own defense, she offered nothing more than a 

brief statement that she had made progress in dealing with her issues and she 

believed that S.D-S. should be with her biological parents. The agency’s evidence, 

however, overwhelmingly demonstrated that a grant of permanent custody to the 

agency was in S.D-S.’s best interest because Mother had been inconsistent about 

addressing her mental health issues, did not have adequate housing, was unwilling 

to complete her case plan, and demonstrated her lack of commitment to S.D-S. by 
failing to regularly support, visit, or communicate with her. Father likewise had 

failed to demonstrate his commitment to S.D-S. 

Furthermore, the evidence demonstrated that S.D-S. had been in 

agency custody for nearly three years. R.C. 2151.414(D)(1)(d) instructs a court to 

consider a child’s need for a legally secure placement and whether such placement 

can be achieved without a grant of permanent custody. As this court has recognized, 

“neglected and dependent children are entitled to stable, secure, nurturing and 

permanent homes in the near term, and are not required to languish in legally 

insecure placements for years while natural parents are unwilling or unable to 

correct serious parenting deficiencies.” In re T.S., 8th Dist. Cuyahoga No. 92816, 

2009-Ohio-5496, ¶ 35, citing In re Mayle, 8th Dist. Cuyahoga Nos. 76739 and 77165, 

2000 Ohio App. LEXIS 3379 (July 27, 2000). In light of Mother’s repeated failures 

over the lengthy proceedings to complete her case plan and address the issues that 

led to S.D-S.’s removal, it is apparent that S.D-S.’s need for a legally secure 

placement could not be satisfied other than by a grant of permanent custody to the 

agency.

C. Due Process

Mother also contends that the termination of her parental rights 

violated her due process rights because the juvenile court “used her mental 

disability, her child’s disability, and her poverty against her in terminating her right 

to care for her child.” (Mother’s brief, p. 16-17.) Mother’s argument is without merit. 
Mother was not denied due process in any of the proceedings. She 

was provided with court-appointed counsel and a guardian ad litem, with notice and 

an opportunity to be heard, and all process due her in relation to the permanent 

custody hearing and other proceedings. 

Moreover, Mother’s unsupported claim that the juvenile court relied 

on the child’s disability in terminating Mother’s parental rights fails to account for 

the record, which established that S.D-S. had medical issues when she was born but 

those issues had long been resolved at the time of the permanent custody hearing. 

Indeed, S.D-S.’s grandmother testified that although S.D-S. was born with a hole in 

her heart, the cardiac issue had been resolved and S.D-S. was healthy and “doing 

very well.” Likewise, there is no indication in the record that the agency’s case was 

at all reliant on a claim of Mother’s poverty, nor did the trial court even allude to 

such a finding in its judgment. Mother’s reference to testimony regarding her 

inconsistent housing to support her claim that “financial resources were considered 

by the trial court” (Mother’s brief, p. 20) fails to acknowledge that there was no 

suggestion that Mother’s housing instability was due to a lack of financial resources 

as opposed to her chronic mental instability. 

Finally, in addition to considering Mother’s mental illness and its 

resulting negative effects on S.D-S. in determining that S.D-S. cannot or should be 

placed with Mother, the trial court found that Mother had neglected S.D-S. by failing 

to regularly visit, communicate with, or support her, or obtain adequate housing to 

provide a permanent home for her. R.C. 2151.414(E)(4). The juvenile court also 
found that Mother had demonstrated her unwillingness to provide basic necessities 

to S.D-S. or prevent her from suffering emotional and mental neglect by her 

unwillingness to complete her case plan so she could provide care for the child. R.C. 

2151.414(E)(14). Any one of these factors alone is sufficient for the juvenile court to 

find that the child cannot be placed with either parent within a reasonable time or 

should not be placed with either parent. In re L.W., 8th Dist. Cuyahoga No. 107708, 

2019-Ohio-1343, ¶ 29. Accordingly, although the trial court considered Mother’s 

mental illness in granting permanent custody of S.D-S. to the agency, it was not the 

sole determining factor in the court’s permanent custody decision. 

Thus, Mother’s citation to In re D.A., 113 Ohio St.3d 88, 2007-Ohio1105, 862 N.E.2d 829, is misplaced. In In re D.A., the Ohio Supreme Court noted 

that R.C. 2151.414 does not allow for the termination of parental rights based on a 

parent’s cognitive abilities alone. Id. at ¶ 20. Here, it is apparent that the juvenile 

court’s determination that S.D-S. could not be placed with Mother within a 

reasonable time or should not be placed with her was based on factors other than 

only her mental health issues. 

In sum, we find that the juvenile court’s determinations that S.D-S. 

could not or should not be placed with Mother and that permanent custody was in 

S.D-S.’s best interest were supported by clear and convincing evidence and were not 

against the manifest weight of the evidence. The first assignment of error is 

therefore overruled. 
II. Pretrial and Evidentiary Rulings

In her second assignment of error, Mother contends that the trial 

court abused its discretion by allowing “most” of the pretrial hearings to be 

conducted in her absence while she was in prison. 

Only two hearings were held while Mother was incarcerated; the 

dispositional review hearing held on March 5, 2021, at which time the court ordered 

the first extension of temporary custody; and the dispositional review hearing held 

on November 23, 2021, at which time the trial court ordered the second extension 

of temporary custody. The record demonstrates that Mother was not incarcerated 

when the other hearings in the case occurred, although she sometimes failed to 

appear. 

With respect to the two hearings held while Mother was incarcerated, 

this court is without jurisdiction to review any issues relating to these proceedings 

because Mother did not timely appeal the final appealable orders issued after the 

hearings. “An appeal of an adjudication order of abuse, dependency, or neglect and 

the award of temporary custody pursuant to R.C. 2151.353(A)(2) must be filed 

within 30 days of the judgment entry pursuant to App.R. 4(A).” In re H.F., 120 Ohio 

St.3d 499, 2008-Ohio-6810, 900 N.E.2d 607, syllabus. Likewise, an order granting 

a motion for extension of temporary custody is also a final appealable order. See 

R.C. 2151.353(F)(2) (upon the filing of a motion for extension of temporary custody, 

the court shall hold a hearing upon the motion as if the hearing were the original 

dispositional hearing). Because the orders extending temporary custody were never 
appealed, this court lacks jurisdiction to consider Mother’s claims about the

hearings. In short, Mother cannot now raise issues relating to those orders in an 

appeal from a subsequent order. And even if we did have jurisdiction, we note that 

although the hearings proceeded in Mother’s absence, she benefited from the 

juvenile court’s orders after the hearings continuing S.D-S. in temporary custody 

because they afforded her additional time to engage in case plan services. 

Accordingly, Mother was not prejudiced when the hearings proceeded during her 

incarceration. 

Mother also challenges various pretrial evidentiary rulings made by 

the juvenile court. As discussed above, we lack jurisdiction to consider any 

arguments relating to such pretrial rulings because Mother did not timely appeal 

from the juvenile court’s adjudication of S.D-S. as neglected and its disposition 

awarding temporary custody to the agency, or from the orders extending temporary 

custody. The only proceedings we can review in this appeal are those relating to the 

permanent custody order, which Mother timely appealed. 

With respect to the permanent custody hearing, Mother contends 

that the trial court should have declared a mistrial when the original trial date was 

continued after Father appeared without a lawyer shortly after trial began. The trial 

court continued trial so that Father could obtain counsel and then began trial anew 

at a later date so that Father’s newly appointed counsel could be present and hear 

all the testimony in the proceedings. We find no error in the juvenile court’s 

continuance of trial. 
And despite Mother’s argument otherwise, no “ex parte testimony” 

was presented at the original trial and then later relied upon by the court in 

rendering its permanent custody decision. An “ex parte communication” is defined 

as “[o]n one side only; by or for one party; done for, on behalf of, or on the 

application of, one party only.” Dutton v. Dutton, 127 Ohio App.3d 348, 352-353, 

713 N.E.2d 14 (7th Dist.1998), quoting Black’s Law Dictionary 576 (6th Ed.1990). 

Thus, an ex parte proceeding is one that is usually held without notice to the 

opposing side. Dutton at id. Here, the testimony in question was given at trial and 

all parties were given notice and an opportunity to be heard. The fact that a party 

failed to timely appear does not render the testimony ex parte. Furthermore, there 

is no indication the juvenile court relied on any of the brief testimony given at the 

first trial that was interrupted by Father’s appearance and then continued. Rather, 

the record reflects that trial began anew at a later date after Father obtained counsel. 

Mother also contends that the trial court allowed improper hearsay 

evidence at trial. Mother raised no hearsay objections at trial, however, and 

therefore we review only for plain error. “Plain error is found where a substantial 

right is affected through the erroneous admission of obvious and prejudicial 

testimony that serves to undermine confidence in the verdict.” In re M.H., 8th Dist. 

Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 47. In other words, even if the 

complained of testimony is hearsay, we will not reverse the juvenile court on this 

issue absent prejudice to the outcome. Id. 
Hearsay is not permissible in permanent custody hearings because 

they are adjudicatory in nature and require compliance with the rules of evidence. 

Id. at ¶ 48, citing In re Brofford, 83 Ohio App.3d 869, 878, 615 N.E.2d 1120 (10th 

Dist.1992). However, even if improper hearsay was admitted by the trial court, 

Mother must show that the court actually relied on that evidence in its judgment. In 

re Fountain, 8th Dist. Cuyahoga No. 76650, 2000 Ohio App. LEXIS 672, 18 (Feb. 

24, 2000). A trial judge is presumed to be capable of disregarding improper 

testimony. Id. “The erroneous admission of hearsay evidence is harmless if other 

evidence, apart from the erroneously-admitted evidence, has been offered to prove 

that which the challenged evidence was offered to prove.” In re M.H. at ¶ 73, citing 

In re Decker, 20 Ohio App.3d 203, 485 N.E.2d 751 (3d Dist.1984). 

Most of Mother’s hearsay challenges relate to testimony about her 

mental health issues. But other than her unsupported argument that “there would 

be insufficient evidence to sustain the court’s judgment without admissible evidence 

being admitted,” (Mother’s brief, p. 25), she has not demonstrated that the court 

relied on any inadmissible hearsay testimony about her mental health issues in 

rendering its judgment. As discussed above, the record reveals ample evidence 

other than Mother’s mental health issues that supports the court’s award of 

permanent custody to the agency. Indeed, the juvenile court cited such evidence in 

its judgment entry; i.e., Mother’s neglect of S.D-S. by failing to visit, communicate

with, or support her; Mother’s residence in a shelter, thereby demonstrating her 

unwillingness to provide an adequate, permanent home for S.D-S.; and Mother’s
unwillingness to complete her case plan so that she could provide food, clothing, and 

shelter for S.D-S. 

Mother’s argument that the trial court improperly allowed the 

agency’s caseworker to give lay opinion testimony about Mother’s mental health 

issues is without merit because such opinion testimony is allowed. State v. McKee, 

91 Ohio St.3d 292, 296,744 N.E.2d 737 (2001) (witnesses with firsthand knowledge 

are permitted to offer lay testimony where they have a reasonable basis, grounded 

in experience or specialized knowledge, for arriving at the opinion expressed). 

And Mother’s argument that the trial court allowed counsel for the 

agency to improperly criticize Father for firing his first lawyer is a 

mischaracterization of the record. The record reflects that counsel argued that 

Father demonstrated a lack of commitment to S.D-S. because after he fired the 

public defender in June 2022, Father did not return to court until April 2023. 

Nowhere did counsel suggest, as Mother argues, that “the parents were unfit because 

the prosecution does not like the father’s new lawyer.” (Mother’s brief, p. 28.) 

Upon our review of the record before us, we find no plain error in the 

trial court’s determination that S.D-S.’s best interest was served by a grant of 

permanent custody to the agency. The second assignment of error is therefore 

overruled. 
III. Ineffective Assistance of Counsel 

In her third assignment of error, Mother contends that the trial 

court’s grant of permanent custody should be reversed because her trial counsel was 

ineffective.

To establish ineffective assistance of counsel, Mother must 

demonstrate that (1) counsel’s performance was deficient; and (2) the deficient 

performance prejudiced her so as to deprive her of a fair trial. State v. Trimble, 122 

Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure 

to prove either prong of this two-part test makes it unnecessary for a court to 

consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 

(2000), citing Strickland at 697. This two-part test has been held applicable in 

permanent custody proceedings. In re Wise, 96 Ohio App.3d 619, 627, 645 N.E.2d 

812 (9th Dist.1994). In evaluating a claim of effective assistance of counsel, a 

reviewing court must be mindful that there are countless ways for an attorney to 

provide effective assistance in a given case, and it must give great deference to 

counsel’s performance. Strickland at 689. 

Mother has failed to demonstrate that her counsel was ineffective. 

First, although she claims alleged error regarding counsel’s handling of pretrial 

proceedings, as noted above, this court is without jurisdiction to consider those 

issues because Mother did not timely appeal the trial court’s orders of adjudication

and disposition. Moreover, even assuming counsel’s performance at the permanent 
custody hearing was somehow deficient, Mother has failed to demonstrate that she 

was prejudiced by counsel’s performance. Indeed, Mother makes no argument that 

the result of the permanent custody proceeding would have been different but for 

counsel’s alleged errors, presumably because she cannot. 

At the time of the permanent custody hearing, S.D-S. had been in 

agency custody for 12 of 22 consecutive months, thereby satisfying the first prong of 

the permanent custody statute pursuant to R.C. 2151.414(B)(1)(a). Mother does not 

dispute this finding. With respect to the trial court’s best interest determination, the 

evidence was clear and convincing that Mother had failed to consistently engage in 

referred services pursuant to her case plan and did not have adequate housing at the 

time of trial. These facts alone required the court to find that S.D-S. cannot be placed 

with Mother within a reasonable time or should not be placed with her. See R.C. 

2151.414(E)(1) (if the court determines at a hearing, by clear and convincing 

evidence, that following the placement of the child outside the child’s home, the 

parent has failed continuously and repeatedly to substantially remedy the 

conditions that caused the child to be removed from his or her home, 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). Moreover, as discussed above, the 

evidence was clear and convincing that it was in S.D-S.’s best interest for the court 

to grant permanent custody to the agency. 

Because she has not demonstrated that she suffered any prejudice as 

a result of counsel’s alleged deficiencies, Mother has not satisfied the two-prong test 
for ineffective assistance of counsel. The third assignment of error is therefore 

overruled. 

IV. Cumulative Error 

In her fourth assignment of error, Mother contends that the juvenile 

court’s judgment granting permanent custody of S.D-S. to the agency should be 

reversed because the cumulative effect of the trial court’s evidentiary errors and 

counsel’s ineffectiveness warrants reversal. 

“Under the cumulative error doctrine, ‘a conviction will be reversed 

when the cumulative effect of errors in a trial deprives the defendant of a fair trial 

even though each of the numerous instances of trial-court error does not 

individually constitute cause for reversal.’” Daniels v. Northcoast Anesthesia 

Providers, Inc., 8th Dist. Cuyahoga No. 105125, 2018-Ohio-3562, ¶ 66, quoting 

State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 321. The 

cumulative error doctrine applies in civil cases. Id. 

Having found no error in the trial court’s decision, we find no 

cumulative error. The fourth assignment of error is overruled. 

Judgment affirmed. 

 It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

 

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EMANUELLA D. GROVES, J., and

SEAN C. GALLAGHER, J., CONCUR