[Cite as In re K.J., 2019-Ohio-123.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

IN RE: K.J. 

 

 

 

C.A. No. 29149 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. DN17-04-000278 

DECISION AND JOURNAL ENTRY 

Dated: January 16, 2019 

 

CALLAHAN, Presiding Judge. 

{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common 

Pleas, Juvenile Division, that terminated her parental rights to her child K.J., and placed the child 

in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”). 

This Court affirms. 

I. 

{¶2} Mother is the biological mother of K.J. (d.o.b. 7/23/09). Father voluntarily 

relinquished his parental rights to the child, and he is not a party to this appeal. 

{¶3} Mother was the legal custodian of K.J. until Mother was placed on probation for a 

criminal offense. Because it was uncertain whether she would ultimately have to serve prison 

time for the offense, Mother’s probation officer had her execute a document placing the child in 

the temporary custody of Father. Father had physical possession of the child for the three years 

preceding her removal from the home. 
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{¶4} In April 2017, the Akron Police Department received a call based on numerous 

alleged concerns for a welfare check of the child in her home. Father was not at home at the 

time, but Mother and her boyfriend were there with the child. The child and her clothing were 

dirty, and she was infested with lice. After further finding filth, the lack of kitchen and bathroom 

facilities, and growing marijuana in the home, the police took K.J. into protective custody 

pursuant to Juv.R. 6. Mother and her boyfriend were charged with child endangering. CSB 

obtained an emergency order of temporary custody of the child. At shelter care, both parents 

waived their rights to a hearing and stipulated to a finding of probable cause for the continued 

removal of the child. 

{¶5} CSB filed a complaint, alleging that K.J. was an abused, neglected, and dependent 

child. At adjudication, both Mother and Father waived their rights to a hearing. The magistrate 

adjudicated the child abused, neglected, and dependent as alleged in the complaint. Neither 

parent filed objections. The juvenile court adopted the magistrate’s decision on adjudication. 

Thereafter, Mother and Father both waived their rights to a dispositional hearing before the 

magistrate and stipulated that K.J. would be placed in the temporary custody of CSB. The 

juvenile court adopted the dispositional order without objection. The agency’s case plan was 

adopted as the order of the court. 

{¶6} At the first review hearing three months later, both parents stipulated that the 

child would remain in CSB’s temporary custody. Mother and Father were to have supervised 

visitation with K.J. as the parties might agree. The magistrate held two additional review 

hearings, maintaining the child in the agency’s temporary custody and the parents’ supervised 

visitation, after hearing the testimony of the CSB caseworker. 
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{¶7} After the case had pended for eleven months, Father and Mother each filed a 

motion for a six-month extension of temporary custody, and CSB filed a motion for permanent 

custody. Shortly thereafter, Mother and Father each filed their respective motions for legal 

custody. In addition, Mother filed a request for an in camera interview of the child. The juvenile 

court granted that request and interviewed the child in chambers with the guardian ad litem 

present. 

{¶8} Immediately prior to the commencement of the permanent custody hearing, 

Father surrendered his parental rights. The hearing proceeded as to the agency’s and Mother’s 

motions. At the conclusion of the hearing, the juvenile court issued its judgment, granting CSB’s 

motion for permanent custody and terminating Mother’s parental rights. Mother filed a timely 

appeal in which she raises three assignments of error for review. This Court addresses some 

assignments of error out of order to facilitate review. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN 

GRANTING PERMANENT CUSTODY AS THE TRIAL COURT FAILED TO 

COMPLY WITH R.C. 2151.28(L), WHEN IT ISSUED ITS DEPENDENCY 

ORDERS. 

{¶9} Mother argues that the juvenile court erred by failing to comply with the 

requirements of R.C. 2151.28(L) when it adjudicated K.J. a dependent child. This Court 

disagrees. 

{¶10} Juv.R. 40(D)(3)(b)(iv) provides: 

Except for a claim of plain error, a party shall not assign as error on appeal the 

court’s adoption of any factual finding or legal conclusion, whether or not 

specifically designated as a finding of fact or conclusion of law under Juv.R. 

40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as 

required by Juv.R. 40(D)(3)(b). 
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Accordingly, “‘[w]hen a party fails to raise an issue in the party’s objections to the magistrate’s 

decision, it may not be raised for the first time on appeal.’” In re C.C.-L., 9th Dist. Summit No. 

28666, 2017-Ohio-9296, ¶ 23, quoting Varner v. Varner, 170 Ohio App.3d 448, 2007-Ohio-675, 

¶ 22 (9th Dist.). Because Mother did not file objections to the magistrate’s decision adjudicating 

K.J. a dependent child, she has forfeited all but plain error on appeal. See Juv.R. 40(D)(3)(b)(iv). 

In the criminal context, plain error does not exist unless it can be said that but for 

the error, the outcome of the trial would have been different and 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 involving exceptional circumstances where error, 

to which no objection was made at the trial court, seriously affects the basic 

fairness, integrity, or public reputation of the judicial process, thereby challenging 

the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79 

Ohio St.3d 116 (1997), syllabus. 

(Internal quotations omitted.) In re S.G., 9th Dist. Summit No. 27428, 2015-Ohio-2503, ¶ 11. 

{¶11} This Court has not yet determined whether the criminal or civil plain error 

standard applies in dependency, neglect, and abuse cases. In re K.C., 9th Dist. Lorain No. 

17CA011135, 2017-Ohio-8779, ¶ 29, citing In re S.G. at ¶ 11. As Mother cannot prevail here 

under either standard, we decline to make that determination in this case. 

{¶12} R.C. 2151.28(L) requires the juvenile court to make certain written findings of 

fact and conclusions of law in its judgment when it adjudicates a child to be dependent. Included 

in those findings must be “specific findings as to the existence of any danger to the child and any 

underlying family problems that are the basis for the court’s determination that the child is a 

dependent child.” Id. 

{¶13} Both Mother and Father waived their rights to an adjudicatory hearing at which 

CSB would have had the burden of proving the allegations in the complaint by clear and 

convincing evidence. See In re T.C., 9th Dist. Wayne Nos. 18AP0021 and 18AP0022, 2018-
5 

 

Ohio-4369, ¶ 15, citing Juv.R. 29(F) and R.C. 2151.35(A)(1). By waiving their rights to a 

hearing, Mother and Father effectively stipulated to a finding of all factual allegations in the 

complaint. Assuming without deciding that the juvenile court could not proceed with a 

permanent custody hearing in the absence of an adjudication judgment which complied with the 

mandates of R.C. 2151.28(L), the allegations in the complaint supported the statutorily required 

findings. Mother’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

TERMINATED MOTHER’S PARENTAL RIGHTS AS THE EVIDENCE WAS 

NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶14} Mother argues that the juvenile court’s award of permanent custody of K.J. to 

CSB was against the manifest weight of the evidence. This Court disagrees. 

{¶15} In considering whether the juvenile court’s judgment is against the manifest 

weight of the evidence, this 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 [hearing] ordered.” (Internal quotations and citations 

omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the 

evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.” 

Id. at ¶ 21. 

{¶16} Before a juvenile court may terminate parental rights and award permanent 

custody of a child to a proper moving agency, it must find clear and convincing evidence of both 

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the 

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the 
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child or another child of the same parent has been adjudicated abused, neglected, or dependent 

three times; or that the child cannot be placed with either parent, based on an analysis under R.C. 

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of 

the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest 

factors include: the interaction and interrelationships of the child, the wishes of the child, the 

custodial history of the child, the child’s need for permanence and whether that can be achieved 

without a grant of permanent custody, and whether any of the factors outlined in R.C. 

2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit 

Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will 

“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 

(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. In 

this case, Mother limits her challenge to the juvenile court’s determination that CSB satisfied the 

first prong of the permanent custody test. Mother does not make any argument regarding the 

best interest of the child. 

{¶17} In its motion for permanent custody, CSB alleged as its sole first-prong ground 

that K.J. could not be placed with her parents within a reasonable time or should not be placed 

with her parents pursuant to R.C. 2151.414(B)(1)(a). In support, the agency alleged five 

Subsection (E) factors. Because Father voluntarily surrendered his parental rights, we focus 

solely on the allegations relevant to Mother. Specifically, CSB alleged that (1) despite 

reasonable case planning and diligent efforts by the agency, Mother continuously and repeatedly 

failed to substantially remedy the conditions that caused the child’s placement outside the home 
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pursuant to R.C. 2151.414(E)(1); (2) Mother has a chronic mental illness and/or chemical 

dependency problem that is so severe that Mother is unable to provide the child with an adequate 

permanent home at present and, as anticipated, within one year pursuant to R.C. 2151.414(E)(2); 

(3) Mother demonstrated a lack of commitment toward the child pursuant to R.C. 

2151.414(E)(4); (4) Mother was unwilling to provide for the basic needs of the child or protect 

the child from abuse or neglect pursuant to R.C. 2151.414(E)(14); and (5) any other relevant 

factor applied pursuant to R.C. 2151.414(E)(16). 

{¶18} After the permanent custody hearing, the juvenile court found that CSB had met 

its burden of proving that K.J. could not be reunified with Mother within a reasonable time or 

that the child should not be returned to Mother. The lower court premised its first-prong 

conclusion on findings that Mother had failed to substantially remedy the conditions that led to 

the child’s removal, and that Mother continued to suffer from chronic mental health and 

chemical dependency issues, the severity of which rendered Mother unable to provide K.J. with 

an adequate permanent home in the foreseeable future. 

{¶19} R.C. 2151.414(E) provides, in relevant part: 

In determining at a hearing held pursuant to division (A) of this section or for the 

purposes of division (A)(4) of section 2151.353 of the Revised Code 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 

held pursuant to division (A) of this section or for the purposes of division (A)(4) 

of section 2151.353 of the Revised Code 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 by 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 
8 

 

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. 

(2) Chronic mental illness, chronic emotional illness, intellectual disability, 

physical disability, or chemical dependency of the parent that is so severe that it 

makes the parent unable to provide an adequate permanent home for the child at 

the present time and, as anticipated, within one year after the court holds the 

[permanent custody] hearing * * *[.] 

{¶20} Although K.J. was removed from Father’s home, Mother and her boyfriend had 

also been living in that home for three months at the time of the child’s removal. Neither Mother 

nor her boyfriend was named on the lease, and Mother had not provided a home for the child for 

three years. The home was “deplorable,” lacking a kitchen, sink, refrigerator, and working toilet 

and bathtub. The inhabitants used a bucket for a toilet. The child was filthy and infested with 

lice. She had rarely attended school since Mother joined the household. There was a history of 

domestic violence between Father and Mother, with Mother being the physical aggressor. Both 

Mother and her boyfriend had threatened home inhabitants with physical violence. Mother 

admitted to having diagnosed mental health issues which she addressed, in part, with marijuana. 

Mother was growing marijuana in the home. At the time of the child’s removal, there were 

pending warrants for Mother’s arrest based on theft and drug paraphernalia charges. 

{¶21} CSB established a case plan to help Mother address the issues that hindered her 

ability to provide a safe and stable home for K.J. Under the terms of the case plan that the 

juvenile court adopted as its order, Mother was required to (1) obtain a chemical dependency 

assessment and follow all recommendations for treatment, including attending AA or NA 

meetings, counseling, intensive outpatient treatment, inpatient treatment, drug screens, and a 

mental health assessment; (2) obtain a psychological/parenting assessment or mental health 
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assessment and follow all treatment recommendations, including attending counseling, additional 

testing, anger management counseling, parenting education, and being medication-compliant; (3) 

demonstrate the ability to meet her own and the child’s basic needs by maintaining an adequate 

income, a home free from hazards, and good family hygiene; and (4) obtain an anger 

management assessment and follow all treatment recommendations. 

{¶22} Mother argues that CSB failed to meet its obligation to implement reasonable case 

planning, i.e., to tailor Mother’s case plan objectives to address the conditions that initially gave 

rise to the removal of K.J. from the home. In addition, Mother argues that CSB failed to use 

diligent efforts to assist her by failing to allow her adequate time to address her issues. 

Specifically, Mother argues that CSB prematurely filed its motion for permanent custody after 

Mother had only had eight months to work on her case plan objectives. 

R.C. 2151.414(E)(1) requires that children services agencies engage in reasonable 

case planning and diligent efforts to remedy the concerns at issue. In addition to 

setting appropriate case plan goals for parents engaged in custody actions, 

children services agencies must, in good faith, provide services and engage in 

efforts that are reasonable calculated to succeed in reunifying parents and their 

children. See, e.g., In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-

Ohio-6027, ¶ 23[ and] 33. * * * In addition, it is fundamental that parents must 

be afforded a reasonable amount of time to accomplish their goals. 

* * * 

Case plans are the tools that children services agencies use to set forth the goals of 

parents to allow for the return of children to their parents. In re C.E., 3d Dist. 

Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 15. Their central purpose 

is to remedy the problems that caused the children’s removal and to accomplish 

the reunification of parents and children. In so doing, the agency must take into 

consideration the individual circumstances of each case. 

In re M.P., 9th Dist. Lorain No. 14CA010678, 2015-Ohio-2226, ¶ 30 and 48. 

{¶23} With regard to Mother’s argument that CSB did not properly tailor her case plan 

objectives to allow her to remedy the conditions that resulted in the child’s placement outside the 

home, this Court has found no objection by Mother below to the juvenile court’s adoption of the 
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agency’s case plan and amended case plan. “A party may not object to matters regarding case 

plan implementation for the first time on appeal.” In re N.L., 9th Dist. Summit No. 27784, 2015-

Ohio-4165, ¶ 33, citing In re M.Z., 9th Dist. Lorain No. 11CA010104, 2012-Ohio-3194, ¶ 18. 

As Mother failed to challenge her case plan objectives below by objecting to the adoption of the 

case plans as the orders of the court, at a time when the juvenile court could have considered her 

arguments, we decline to consider them in the first instance. See In re N.L. at ¶ 33, citing In re 

H.W., 9th Dist. Summit No. 27730, 2015-Ohio-3018, ¶ 10. 

{¶24} As to Mother’s argument that CSB did not use diligent efforts because the agency 

did not allow her a reasonable time to accomplish her objectives, this Court disagrees. In 

addition to the eight months Mother had to work on remedying the conditions that led to the 

removal of the child, she had another four-and-a-half months prior to the commencement of the 

permanent custody hearing in which to try to accomplish her objectives. Mother does not claim 

that CSB stopped providing services to her after the agency filed its motion for permanent 

custody. In fact, the record evidences the ongoing services provided to Mother, as well as the 

caseworker’s accommodations to allow Mother to work with providers with whom she had 

already established a relationship. Accordingly, CSB facilitated Mother’s participation in 

services designed to help her remedy the concerns regarding Mother’s ability to parent the child 

appropriately and for a reasonable period of time. 

{¶25} Substantively, the clear and convincing evidence adduced at the permanent 

custody hearing supported the juvenile court’s finding that Mother continuously failed to 

substantially remedy the conditions that caused the child to be placed outside her home. She 

does not dispute that she has suffered from mental health issues throughout much of her life. 

Mother reported that she was diagnosed with bipolar disorder. She suffers from major 
11 

 

depression with psychosis and has experienced both auditory and visual hallucinations. The 

mental health professionals who worked with Mother reported that she is not always medicationcompliant. For a substantial portion of this case, Mother refused to take her prescribed 

medication because she was attempting to become pregnant. Nevertheless, Mother continued to 

use marijuana on a regular basis, and was forthright in her assertion that she did not plan to stop 

smoking it. Her psychiatrist testified that marijuana use was contraindicated because it 

negatively impacted the efficacy of Mother’s prescription medications. Mother’s clinical 

psychologist testified that she counseled Mother not to use marijuana because of the likelihood 

that it would exacerbate her symptoms of depression and anxiety. 

{¶26} Although Mother made efforts to attend appointments and was generally 

cooperative with her service providers when she did attend, the testimonial consensus was that 

Mother continued to lack insight into her mental health issues, her aggressive behaviors, and the 

insensitivity she exhibited in her relationship with K.J. Although Mother attended every 

scheduled visitation with the child, K.J. requested that telephone communication between her 

and Mother cease because it was too stressful for the child who was afraid that Mother would 

call her names or make inappropriate comments to her. The child’s counselor discussed the 

severe trauma the child suffered while in her parents’ care, but Mother evidenced little 

understanding of the effect that environment had on K.J. 

{¶27} Mother self-reported episodes of intense anger to her service providers. She 

admitted ongoing anger with the CSB caseworker, who testified that she ceased making home 

visits to Mother’s home after Mother threatened her with physical violence. Mother’s clinical 

psychologist expressed current concerns regarding Mother’s inability to manage her anger, 
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aggression, and mood stability based on the nature of the character pathology associated with 

Mother’s personality disorders. 

{¶28} Mother’s counselor at Greenleaf Family Center echoed the concerns of the other 

mental health professionals. After performing a diagnostic assessment, the counselor determined 

that Mother needed to develop appropriate parenting skills, substance use skills, and anger 

management skills. Because of Mother’s anxiety and general irritability around other people, the 

counselor worked individually with Mother. The counselor testified that it became futile to 

attempt to address Mother’s parenting and substance abuse issues when Mother reported that 

there were no problems in her relationship with K.J. and that she had no desire to stop using 

marijuana. Accordingly, the counselor focused efforts on Mother’s anger issues. Nevertheless, 

the counselor reported little success because Mother blamed Father and CSB for any problems. 

Moreover, Mother’s boyfriend/fiancé always attended all of Mother’s appointments at her 

insistence, even though the counselor’s notes indicated that she told Mother that it would be 

helpful to meet with her alone. 

{¶29} A CSB social services aide who supervised some of Mother’s visitations with the 

child testified regarding some inappropriate behavior by Mother. For example, Mother would 

engage in “pretty extensive” tickling of the child. Mother disregarded the child’s pleas that 

Mother stop the tickling. In addition, although the agency told Mother to bring reasonably sized, 

healthy meals for the child because she was obese, Mother continued to bring heavy, starchy 

foods in portions more suitable for a grown man. The aide reported that Mother let the child eat 

a piece of cake that was large enough for three adults to share. Mother also engaged in 

inappropriate conversations with the child, including telling the child about Mother’s pregnancy 

in the early stages and her subsequent miscarriage. Finally, Mother consistently brought her 
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boyfriend/fiancé to visitations even though he was not supposed to be there and the child did not 

want to interact with him. 

{¶30} The CSB caseworker testified that Mother had not made sufficient progress on her 

case plan objectives. Mother lived in three or four residences during the case. The caseworker 

had not visited Mother’s most recent home due to Mother’s multiple threats of violence against 

her, but Mother reported that she had no furniture in the home. Mother continued to live with 

her boyfriend/fiancé who she asserted posed no threat to the child despite his extensive criminal 

history, including acts of violence; a history of substance abuse; suspected mental health issues; 

as well as Mother’s assertion that she would never leave the child alone with her 

boyfriend/fiancé, although she refused to explain why not. The child had expressed fear of 

Mother’s boyfriend/fiancé based on instances of domestic violence between Mother and the man, 

and certain acts by the boyfriend/fiancé that made the child feel uncomfortable. Even though 

Mother denied any incidents of domestic violence, she admitted to the caseworker that she sleeps 

with a hammer under her pillow and that both she and her boyfriend/fiancé regularly carry 

weapons. 

{¶31} Mother claimed to have four jobs during the pendency of the case, but she failed 

to provide any documentation to the caseworker to substantiate her claim that she was currently 

employed. Mother continues to struggle to maintain employment because she becomes easily 

frustrated and angry with people. 

{¶32} The caseworker concluded that Mother has not complied with her case plan 

objectives. Despite attending appointments for services, Mother continues to demonstrate a lack 

of insight regarding her mental health and substance abuse issues, and she has not been able to 

implement skills to control her anger. The guardian ad litem echoed the concerns of the 
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caseworker and other professionals in this case. The guardian acknowledged that, although 

Mother had worked very hard on her case plan objectives, Mother had not been able to 

demonstrate successful completion of any of them. The guardian opined that, given Mother’s 

demonstrated ongoing issues, an extension of temporary custody would not allow Mother to 

succeed in substantially remedying the conditions that initially resulted in K.J.’s removal from 

her home. 

{¶33} Based on clear and convincing evidence establishing ongoing concerns about 

Mother’s ability to provide a nurturing, safe, and healthy environment for K.J, notwithstanding 

the agency’s reasonable case planning and diligent efforts, Mother failed continuously and 

repeatedly to substantially remedy the conditions which caused the child to be placed outside 

Mother’s home. See R.C. 2151.414(E)(1). Mother had been receiving mental health services 

prior to CSB’s involvement, and the agency allowed her to continue working with some of the 

providers with whom she was comfortable. Mother missed some appointments and failed to 

follow the recommendations of the professionals when she did attend. Despite the 

recommendations of multiple professionals that she stop using marijuana, Mother repeatedly 

asserted that she had no intention of doing so. Despite her psychiatrist’s recommendation that 

she take her medications as prescribed, Mother routinely failed to comply because she was trying 

to become pregnant. Despite her psychological assessment that identified multiple issues for her 

to address, Mother denied having any problems with parenting, her relationship with the child, 

and substance abuse. Accordingly, her clinical psychologist could not even begin working with 

her on those issues. Finally, despite recognizing her tendency to quickly become angry and 

aggressive with other people, Mother failed to develop the skills necessary to manage her anger. 

Under these circumstances, the juvenile court’s finding that K.J. could not be placed with Mother 
15 

 

within a reasonable time or should not be placed with Mother was not against the manifest 

weight of the evidence. Mother’s third assignment of error is overruled. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN 

GRANTING PERMANENT CUSTODY BASED, IN PART, UPON AN INCAMERA HEARING WITH THE CHILD IN VIOLATION OF MOTHER’S 

DUE PROCESS RIGHT OF CONFRONTATION. 

{¶34} Mother argues that the juvenile court erred by relying on information received 

during an in camera interview with the child. This Court disagrees. 

{¶35} As an initial matter, R.C. 2151.414(D)(1)(b) allows the juvenile court to consider 

“[t]he 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[,]” when determining whether an award of 

permanent custody would be in the child’s best interest. Mother concedes this point of law. 

{¶36} Mother challenges the use of information gleaned from the juvenile court’s 

interview with the child on several bases. First, she argues that the court could not rely on that 

information to support its first-prong finding that K.J. could not be returned to Mother within a 

reasonable time or should not be returned to her. A close reading of the judgment, however, 

indicates that the juvenile court did not rely on the child’s statements to substantiate its firstprong finding. Instead, the juvenile court relied on testimonial evidence of Mother’s failure to 

substantially remedy the conditions that caused K.J. to be placed outside the home and Mother’s 

severe, chronic mental illness and chemical dependency. The juvenile court’s statement that the 

child noted behaviors by Mother that supported the testimony of the various witnesses is merely 

anecdotal. 

{¶37} Second, Mother argues that the juvenile court embellished the child’s statements 

regarding Mother’s behaviors as having been as a result of Mother’s mental health and drug use 
16 

 

issues. Specifically, the juvenile court wrote: “[K.J.] noted in her in camera interview, the 

yelling and agitation that was often expressed by Mother due to her co-occurring mental health 

and chemical dependency disorders were disturbing to her and were a reason that she did not 

want to return home.” Mother correctly states that the child never referenced Mother’s mental 

health or substance abuse issues. This Court, however, does not read the juvenile court’s 

statement to mean that K.J. referenced those issues. Instead, we read the court’s statement 

merely to indicate that the child witnessed Mother’s frequent loud and agitated behavior, which 

the juvenile court, not the child, found to be due to Mother’s mental health and chemical 

dependency issues identified by the CSB caseworker and other professionals who had worked 

with Mother. 

{¶38} Third, Mother argues that the juvenile court violated Mother’s due process right 

to confront a witness against her when it “rel[ied] upon the ex parte statements the child made at 

the in-camera hearing[.]” (Emphasis in original.) She argues that she should have been 

permitted to cross-examine the child. Mother ignores the fact that it was she who requested that 

the juvenile court conduct an in camera interview with the child. Mother did not subpoena the 

child to testify at the hearing. The juvenile court did not place the child under oath, but rather 

engaged in informal conversation with her, as is typical of an in camera interview. Unlike the 

right of an accused in a criminal prosecution to confront witnesses against him or her, the 

Confrontation Clause of the Sixth Amendment to the United States Constitution has not been 

extended to allow parents to cross-examine their children during in camera interviews in 

permanent custody cases. The very nature of the in camera interview is non-adversarial. 

Moreover, CSB moved the court to reschedule the child’s in camera interview to a day that the 

parents would not be at the courthouse, so that K.J. would not have to risk seeing Mother and 
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Father, thereby allowing the child to speak freely without fear of repercussion by her parents. 

Mother did not object to the agency’s request. Neither did she object to CSB’s proposed 

questions for the in camera interview or submit her own questions to the juvenile court. 

Accordingly, Mother cannot now be heard to complain that the juvenile court considered 

statements by the child that Mother requested the court to elicit informally without her input. 

Mother’s second assignment of error is overruled. 

III. 

{¶39} Mother’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas, Juvenile Division, is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of 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 constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
18 

 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, J. 

SCHAFER, J. 

CONCUR. 

APPEARANCES: 

NEIL P. AGARWAL, Attorney at Law, for Appellant. 

ANTHONY COSTELLO, Attorney at Law, for Appellee. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant 

Prosecuting Attorney, 

TONY PAXTON, Guardian ad Litem.