[Cite as In re E.-J. Children, 2019-Ohio-1519.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: E.-J. CHILDREN : 

: 

APPEAL NO. C-190007 

TRIAL NO. F13-1048Z 

 O P I N I O N.

 

Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

 Remanded 

Date of Judgment Entry on Appeal: April 24, 2019 

Christopher P. Kapsal, for Appellant Mother, 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nick Gramke, 

Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job 

and Family Services, 

Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis, 

Assistant Public Defender, Guardian ad Litem, for I.E.-J. and C.E. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MOCK, Judge. 

{¶1} Mother appeals the juvenile court’s judgment awarding permanent 

custody of her two children, I.E.-J., currently age ten, and C.E., currently age three, 

to the Hamilton County Department of Job and Family Services (“HCJFS”). For the 

following reasons, we affirm the grant of permanent custody of I.E.-J. to HCJFS but 

reverse the award of permanent custody to HCJFS with respect to C.E. 

Factual Background 

{¶2} HCJFS first had contact with this family in 2013, but mother has had 

previous involvement with child protective services in two different states. In May 

2000, the Illinois Department of Children and Family Services became involved with 

mother after her infant daughter died because of cosleeping with mother. The death 

was ruled an accident, and a safety plan was put in place, with services offered to 

mother. She refused the services, and the case was closed. 

{¶3} In January 2007, the Iowa Department of Children Services (“DHS in 

Iowa”) removed mother’s three children from her home, and eventually the Iowa 

Juvenile Court in Scott County terminated mother’s parental rights in 2008. The 

appellate court affirmed the termination of mother’s parental rights, citing as the 

basis for its decision, mother’s history of domestic violence, substance abuse, 

mental-health issues and her resistance to services. In 2009, mother gave birth to 

I.E.-J. 

{¶4} In 2010, DHS in Iowa temporarily removed I.E.-J. from mother’s care 

because of drugs found in the home. I.E.-J.’s caretaker admitted to using crack 

cocaine. Mother minimized the threats to I.E.-J. and refused services. I.E.-J. was 
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returned to mother with orders of protective supervision. The case was closed, and 

eventually mother and I.E.-J. moved to Ohio. 

{¶5} In April 2013, HCJFS removed I.E.-J. from mother’s care after she and 

her boyfriend were both arrested for domestic violence. Mother allegedly chased her 

boyfriend with a knife in I.E.-J.’s presence. At the request of HCJFS, mother 

completed a diagnostic assessment, which indicated that mother had an anti-social 

personality disorder. No treatment was recommended, however, because this 

disorder is, according to experts, not amenable to treatment. HCJFS also requested 

random drug screens, but mother missed several appointments. Eventually, custody 

of I.E.-J. was remanded to mother with orders of protective supervision. 

{¶6} HCJFS became involved with the family again in October 2016 when 

mother brought C.E., born in July 2016, to Cincinnati Children’s Hospital where he 

was diagnosed with a catastrophic brain injury. Mother reported that she had 

swaddled C.E., then laid him on his back and went downstairs. When she came back 

upstairs, he was face down on the bed with a bloody nose. HCJFS received interim 

custody of both children due to the unknown cause of C.E.’s injury. 

{¶7} While the children were in the interim custody of HCJFS, mother 

completed a second diagnostic assessment, which reaffirmed mother’s diagnosis of 

anti-social personality disorder. In addition, during this assessment, mother 

reported that the night she brought C.E. to the hospital, she had a blood test, which 

revealed that her blood-alcohol level was .09. 

{¶8} Ultimately, the children were adjudicated dependent, but were 

returned to mother’s care, with orders of protective supervision, because the medical 

evidence did not indicate that mother was responsible for C.E.’s injury. In his 
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decision, the magistrate noted that the order regarding mother complying with 

random drug screens was made because the hospital nurses had reported mother 

smelled of alcohol on several occasions when she was visiting C.E. 

{¶9} Beechacres Parenting Center completed a mental-health assessment 

on I.E.-J. in 2016. At that time, I.E.-J. was living with mother, and mother reported 

that I.E.-J. had been “kicked out” of a summer camp for “hitting” and another camp 

for “throwing things.” Mother reported that I.E.-J. wrote “DIE” on the toilet at 

home, put a hole in the wall, and would kick things out of anger. Previously, mother 

had I.E.-J. enrolled in a school program that specifically helped children with 

behavior issues. Mother reported that I.E.-J. did not listen to her, wandered off, 

cried often, lied and tried to steal things. Mother mentioned that I.E.-J. would steal 

things to give to other children to seek attention. 

{¶10} I.E.-J. was diagnosed with oppositional defiant disorder, and it was 

indicated that the “the frequency of these symptoms are all of the time and they are 

impacting [I.E.-J.’s] functioning in a home and school setting.” I.E.-J. was also 

diagnosed with post-traumatic stress disorder, evidenced by her nightmares, crying 

and struggling with boundaries. The trauma underlying her stress was identified as 

I.E.-J.’s repeated removal from mother’s care. 

{¶11} In October 2017, HCJFS moved for interim and permanent custody of 

the children. With respect to C.E., HCJFS indicated in its complaint that C.E. had 

been ready for discharge from the hospital since July 2017, but mother refused to 

give her consent to transfer C.E. to a long-term-care facility. HCJFS also noted that 

C.E.’s father had no contact with him. With respect to I.E.-J., HCJFS indicated that 

mother had missed most of her urine screens, and of the two screens taken by that 
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time, one was “abnormal.” The juvenile court magistrate denied the motion for 

interim custody and held that before it could address the permanent-custody motion, 

HCJFS must hold a “permanency staffing” to determine if the agency wanted to seek 

permanent custody as a disposition. 

{¶12} In November 2017, I.E.-J. was removed from mother’s care, for the 

fourth time, after mother’s arrest in Kentucky for driving under the influence of 

alcohol and having an open container in the car. Mother had left I.E.-J. in the care of 

a person HCJFS had not approved, and the caretaker was unable and/or unwilling to 

care for I.E.-J. the following day. Additionally, HCJFS was unable to reach mother 

following her release from jail. Because of these circumstances, HCJFS filed an 

amended complaint for permanent custody of the children. 

{¶13} At the adjudication and disposition hearings, the HCJFS caseworker 

testified that mother had requested additional services, so HCJFS offered mother the 

option of submitting to a hair-follicle test in place of the toxicology screens, and 

completing a parenting evaluation. The HCJFS caseworker testified that mother 

refused the hair-follicle test, and, due to scheduling conflicts, ultimately decided that 

she did not want to complete the parenting evaluation. 

{¶14} At the conclusion of the adjudication and disposition hearings, the 

magistrate adjudicated C.E. and I.E.-J. dependent and denied HCJFS’s motion for 

permanent custody of the children. With respect to C.E., the magistrate noted that 

C.E. could not be returned to his mother’s care because of his medical needs, and 

that he had been successfully transferred to St. Joseph’s Infant home, a long-termcare nursing facility, with the consent of his mother. The magistrate therefore 

awarded HCJFS temporary custody to determine whether it actually needed 
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permanent custody of C.E. in order to continue his placement at the long-term-care 

facility. 

{¶15} With respect to I.E.-J., the magistrate noted mother’s many missed 

screens and found that mother was intentionally avoiding toxicology screens. Due to 

her lack of attendance, the magistrate determined that the screens could not rule out 

ongoing alcohol use despite two negative screens. The magistrate also noted that 

even though the charges in Kentucky against mother were eventually dismissed 

without prejudice, the testimony of the arresting officer presented by HCJFS 

established that mother was found asleep at the wheel of a car with an open 

container and that she was highly intoxicated. Despite these findings, the magistrate 

found it was in the best interest of I.E.-J. to remand custody to mother with orders of 

protective supervision because (1) there had been no evidence presented that 

mother’s suspected alcohol abuse had harmed I.E.-J.; (2) I.E.-J. was bonded to 

mother; and (3) I.E.-J. had not adjusted well to foster care. 

{¶16} HCJFS filed objections to the magistrate’s decision, which the juvenile 

court sustained, finding that mother’s alcohol abuse had harmed I.E.-J. when mother 

had left her without adequate supervision on at least one occasion. Accordingly, the 

juvenile court determined that it was in the best interest of the children to be 

committed to the permanent custody of HCJFS since the children could not and 

should not be returned to either of their parents. 

{¶17} This appeal followed. 

{¶18} In her first assignment of error, mother contends that the juvenile 

court erred by granting permanent custody of C.E. to HCJFS. We agree. 

{¶19} The juvenile court’s entry stated in part, 
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[t]he Magistrate’s Decision is rejected as the 

judgment of this Court as it pertains to [I.E.-J.]. The 

Magistrate’s Decision regarding [C.E.] is accepted and 

approved as the judgment of the court. Therefore, 

based upon clear and convincing evidence presented 

and in the best interest of the child, [I.E.-J.] and 

[C.E.] are committed to the Permanent Custody of 

Hamilton County Job and Family Services. It is in the 

best interest of the children to be placed in 

Permanent Custody. 

{¶20} Given that the juvenile court specifically adopted that part of the 

magistrate’s decision denying HCJFS’s motion for permanent custody of C.E., we 

believe that the court’s following sentence, which committed both children to the 

permanent custody of HCJFS, was a clerical error. This conclusion is supported by 

the fact that the juvenile court’s analysis in its entry focused solely on I.E.-J. 

{¶21} To the extent this was not a clerical error, we hold that the juvenile 

court erred in granting permanent custody of C.E. to HCJFS as an initial disposition 

following a finding of dependency. Given that C.E. has been admitted to an 

appropriate long-term-care facility with the consent of mother, a grant of temporary 

custody to HCJFS is in the best interest of C.E. so that the agency can determine 

whether a termination of parental rights is necessary to maintain C.E. at his current 

long-term-care facility. 
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{¶22} The first assignment of error is sustained, and this case is remanded to 

the juvenile court to correct its clerical error. 

{¶23} In her second assignment of error, mother argues that the trial court 

erred by adjudicating I.E.-J. dependent. Because mother did not object to the 

magistrate’s finding of dependency, we may only review for plain error. See In re 

Etter, 134 Ohio App.3d 484, 631 N.E.2d 694 (1st Dist.1998). Plain error is not 

favored in civil cases and “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.” 

State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 40, citing 

Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). 

{¶24} A finding of dependency must be supported by clear and convincing 

evidence. Juv.R. 29(E)(4). At the custody proceeding, it was established that mother 

was arrested in Kentucky and spent the night in jail. Although mother left I.E.-J. 

with a caretaker, this caretaker testified she was not expecting to care for I.E.-J. 

overnight and was unable to care for her the next day. R.C. 2151.01(C) provides that 

a dependent child is any child whose condition or environment is such as to warrant 

the state, in the interests of the child, in assuming the child’s guardianship. Because 

the evidence demonstrated there was no one to care for I.E.-J. during mother’s arrest 

and brief stay in jail, there was clear and convincing evidence to support the juvenile 

court’s finding of dependency. The second assignment of error is overruled. 

{¶25} In mother’s third and final assignment of error, she argues that the 

court’s judgment awarding permanent custody of both children to HCJFS was 
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against the manifest weight of the evidence and not supported by sufficient evidence. 

We first note that we have already determined that the juvenile court made a clerical 

error in awarding HCJFS permanent custody of C.E., and have held that if it was not 

a clerical error, it was not in C.E.’s best interest to award permanent custody to 

HCJFS. To that extent, we sustain mother’s third assignment of error. We now 

address whether the court’s award of permanent custody of I.E.-J. to HCJFS was 

proper. 

{¶26} The trial court’s award of permanent custody must be supported by 

clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-110363, 2011-

Ohio-4912, ¶ 46. “Clear and convincing evidence” is evidence sufficient to “produce 

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

established.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 

42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph 

three of the syllabus. We will not substitute our own judgment for that of the trial 

court applying a clear-and-convincing standard where there is ample competent and 

credible evidence supporting the trial court’s determination. See In re A.J.O. and 

M.N.O., 1st Dist. Hamilton No. C-180680, 2019-Ohio-975, ¶ 6. 

{¶27} The disposition of a child determined to be dependent, abused or 

neglected is controlled by R.C. 2151.353, and the court may enter any order of 

disposition provided for in R.C. 2151.353(A). But before the court can grant 

permanent custody of a child to the agency, the court must determine: (1) pursuant 

to R.C. 2151.414(E) that the child cannot or should not be placed with one of her 

parents within a reasonable time; and (2) pursuant to R.C. 2151.414(D), that the 

permanent commitment is in the best interest of the child. R.C. 2151.353(A)(4). 
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Cannot and Should Not be Placed with Mother 

{¶28} Under R.C. 2151.414(E), the juvenile court must find that a child 

cannot be placed with either parent within a reasonable time or should not be placed 

with either parent if it determines that one of the factors listed in R.C. 2151.414(E)(1) 

through (16) exists as to each of the child’s parents. 

{¶29} Here, the juvenile court found by clear and convincing evidence that 

father had abandoned I.E.-J., see R.C. 2151.414(E)(1), and that mother had had her 

parental rights involuntarily terminated with respect to a sibling of I.E.-J., and had 

failed to provide clear and convincing evidence to prove that, notwithstanding the 

prior termination, she could provide a legally secure permanent placement and 

adequate care for the health, welfare, and safety of I.E.-J. See R.C. 2151.414(E)(11). 

{¶30} The juvenile court’s findings are supported by ample evidence in the 

record. Father has not seen I.E.-J. in over six years. And mother had her parental 

rights terminated by an Iowa court with respect to three of her children due to issues 

with domestic violence, mental health and substance abuse. Mother has not 

demonstrated that she can provide a legally secure permanent placement for I.E.-J. 

despite the prior termination of parental rights. I.E.-J. has been removed from 

mother’s care four times—once in Iowa because of illegal drugs found in the home; 

twice because mother was arrested (once for domestic violence and once for driving 

while under the influence for alcohol/having an open container) and once because of 

a catastrophic injury to I.E.-J.’s brother, on a night when mother’s blood-alcohol 

level was .09. Further, out of the over 20 urine screens that HCJFS scheduled for 

mother, she only attended four. One of those four screens was returned “abnormal” 

and two were not random, because mother knew when she would be tested. The 
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record also demonstrated that mother has a history of refusing services provided to 

her, and her lack of attendance at the toxicology screens and her refusal to submit to 

a hair-follicle test and complete a parenting evaluation demonstrate that. At this 

time, a problem with abusing alcohol cannot be ruled out because of a lack of 

completion of services. The court’s finding that I.E.-J. cannot and should not be 

returned to either parent is properly supported in the record. 

Best Interest 

{¶31} In assessing the best interest of a child for purposes of a permanentcustody determination, a juvenile court must consider all relevant factors, including: 

(a) the child’s interaction with parents, siblings, relatives, foster caregivers and outof-home providers, and any other person who may significantly affect the child; (b) 

the wishes of the child; (c) the custodial history of the child; (d) the child’s need for a 

legally secure placement and whether that type of placement can be achieved without 

a grant of permanent custody; and (e) whether any of the factors under R.C. 

2151.414(E)(7) to (11) apply. See R.C. 2151.414(D)(1)(a)-(e); In re Z.P., 1st Dist. 

Hamilton Nos. C-160572, C-160584 and C-160620, 2018-Ohio-6987, ¶ 31. 

{¶32} Mother argues that because (1) she has a strong bond with I.E.-J., (2) 

I.E.-J. desires to live with mother, and (3) I.E.-J. has not adjusted well to foster care, 

that it is in I.E.-J.’s best interest to be placed in mother’s care with orders of 

protective supervision. But the juvenile court found that the other factors to 

consider under R.C. 2151.414(D) demonstrate that it was in I.E.-J.’s best interest to 

be placed in the permanent custody of HCJFS. That finding is supported by clear 

and convincing evidence in the record. 
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{¶33} With respect to the children’s interaction with significant others, the 

court noted that I.E.-J. was bonded with mother and had not adjusted well to foster 

care. I.E.-J. had difficulty living with mother as well, displaying significant 

behavioral issues. See R.C. 2151.414(D)(1)(a). And, in considering the wishes of the 

child, the court noted that I.E.-J. desired to live with mother. See R.C. 

2151.414(D)(1)(b). The court also considered the custodial history of I.E.-J. and her 

need for a legally secure and permanent placement, noting that I.E.-J. had been 

adjudicated dependent and removed from mother’s care four different times by 

courts in two different states, and that I.E.-J. had been in the temporary care of 

HCJFS for more than 12 months at the time of the court’s permanent-custody 

determination. See R.C. 2151.414(D)(1)(c) and (d). 

{¶34} Finally, the court noted that the factors in R.C. 2151.414(E)(9) and (11) 

applied. First, mother left I.E.-J. without adequate supervision on at least one 

occasion due to alcohol abuse, and I.E.-J. was removed from mother’s care in Iowa 

due to drugs found in the home and the use of drugs by I.E.-J.’s caretaker. Second, 

mother had her parental rights terminated with respect to three of I.E.-J.’s siblings 

while residing in Iowa. Mother refused services through DCS in IA, and has 

consistently either refused or failed to complete services through HCJFS relating to 

similar issues that led to mother’s parental rights being terminated for I.E.-J.’s older 

siblings. See R.C. 2151.414(D)(1)(3). 

{¶35} Accordingly, after our review of the record, we hold that the juvenile 

court’s determinations are supported by clear and convincing evidence, and are not 

against the manifest weight of the evidence. The record reflects that I.E.-J. cannot be 

placed with mother within a reasonable time, or should not be placed with mother, 
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and that her best interest would be served by a grant of permanent custody. 

Therefore, with respect to I.E.-J., we overrule the third assignment of error in part. 

With resepct to C.E., we sustain the assignment of error in part. 

Conclusion 

{¶36} The judgment of the trial court awarding permanent custody of I.E.-J. 

to HCJFS is affirmed. We reverse the part of the trial court’s judgment awarding 

permanent custody of C.E. to HCJFS and remand this cause to the juvenile court to 

correct its entry and enter an award of temporary custody of C.E. to HCJFS. 

Judgment affirmed in part, reversed in part, and cause remanded. 

MYERS, J., concurs. 

ZAYAS, J., concurs in judgment only. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.