[Cite as In re Z.S. , 2021-Ohio-2022.]

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

IN RE Z.S. C.A. No. 29887

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 19-01-0059

DECISION AND JOURNAL ENTRY Dated: June 16, 2021

CALLAHAN, Judge. {¶1} Appellant Mother appeals the ju dgment of the Summit County Cour t of Common Pleas, Juvenile Division, that ter minated her parental rights a nd placed her child in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”). This Court affirms.

I. {¶2} Mother and Father are the biological parents of Z.S. (d.o.b. 1/ 19/19). Because of significant mental health and substance abuse issues, cognitive deficits, and homelessness, Mother had previously lost custody of three older children before Z.S. was born. Father is not the biological father of the older children. {¶3} Within days of Z.S.’ birth, CSB filed a complaint alleging thre e bases for the child’s dependency. After an adjudicatory hearing, the juvenile court found Z.S. to be a dependent child based on the prior adjudications of her older siblings as depen dent and the risk that Z.S. would be subjected to abuse or neglect due to ongoing circumstances in h er home. See R.C. 2151.04(D).2

{¶4} CSB sought and obtained the trial court’s determination that th e agency’s use of

reasonable efforts to facilitate reunification with Mother was not required based on the three prior involuntary terminations of her pa rental rights as to the older children. See R.C. 2151.419(A)(2)(e) . Even so, the agency a sserted that there wer e compelling reasons not to move for permanent custody of Z.S. at that time because it needed ti me to investigate Father as a viable

custodian for the child. Moreove r, despite its excusal from us ing reasonable efforts as to Mother, CSB drafted a case plan with re unification objectives for both Father and Mother. In fact, throughout the case, the agency continued to offer services to Mother. After the initial dispositional hearing, Z.S. was placed in the agency’s temporar y custody by agreement of the parties. The juvenile court adopted the cas e plan as an order. {¶5} Initially, Mother diligently engaged in services and other requ irements of her case plan. As she continued her invol vement with Father, however, M other became noncompliant, rejecting services and failing to adhere to her medication sche dule. Father also failed to participate in services and visitation. Thereafter, CSB sought and obtaine d the juvenile court’s determination

that its use of reasonable efforts to facilitate reunification with Father was no longer required, as

he had abandoned the child. {¶6} Having obtained a reasonable effo rts bypass determination as to both parents, CSB filed a motion for permanent custody. The parties agreed to co ntinue that hearing, however, to allow CSB to assess the maternal grandmother as a possible lega l custodian. Mother filed a motion for legal custody to the maternal grandmother, or, alternativel y, for a six-month extension of temporary custody. After a final dispositional hearing, the ju venile court granted CSB’s motion for permanent custody and terminated Mother’s and Father’s pare ntal rights regarding Z.S. Mother filed a timely appeal in which she raises three assignments of error for review.3

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT CONDUCTED A PERMANENT CUSTODY TRIAL WITHOUT A WAIVER OF MOTHER’S RIGHT TO BE PRESENT, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION. {¶7} Mother argues that the juvenile court committed plain error by not obtaining Mother’s waiver of her right t o be physically present during th e permanent custody hearing. This Court disagrees. {¶8} Mother admits that she did not object to appearing at the perma nent custody hearing by phone. Accordingly, she concedes that this Court reviews fo r plain error. In the criminal context, plain error does not exist unless it c an 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. (Internal quotations omitted.) In re S.G. , 9th Dist. Summit No. 27428, 2015-Ohio-2503, ¶ 11. {¶9} This Court has not determined to date whether the criminal or c ivil plain error standard applies in cases involvi ng dependent, neglected, and/o r abused children. In re K.J. , 9th Dist. Summit No. 29149, 2019-Ohio-123, ¶ 11. We decline to mak e that determination here, as Mother cannot prevail un der either standard. {¶10} Although parents have a constituti onally protected right to att end permanent custody hearings, that right is not absolute. In re L.M. , 9th Dist. Summit No. 29687, 2020-Ohio4451, ¶ 6. For example, there is no due process violation when an incarcerated parent cannot be4

transported to the hearing regarding the termination of parenta l rights. Id. , citing In re G.D. , 9th Dist. Summit No. 27855, 2015-Ohio-4669, ¶ 33. As the right to appear is not absolute, it is axiomatic that the juvenile court need not obtain a parent’s wa iver of the right to be present. To

hold otherwise would be to allow parents to perpetually delay p ermanent custody hearings simply by failing to appear. {¶11} In this case, however, Mother was not precluded from appearing at and participating in the p ermanent custody hearing. In fact, she w as present by telephone, by her agreement, for the entire hearing, except for very limited prel iminary discussions and the testimony

of a records custodian. In add ition, Mother had not been able to connect to the proceedings for the initial testimony of a psychological assistant who explained on ly his client testing protocols during that time. Mother was represen ted by an attorney who was prese nt throughout the e ntire hearing. {¶12} On four separate occasions prior to the permanent custody heari ng, the juvenile court issued orders informing the parties that they had the opt ion to attend the per manent custody hearing either in person or remotely due to the ongoing pandemi c. Mother attended the originally scheduled permanent custody heari ng at which time the juvenile court continued the hearing to give CSB more time to assess the ma ternal grandmother as a poss ible custodian a nd reiterated the parties’ choice to attend the fina l hearing in person or electr onically. There is no evidence in the record that Mother or her attorney objected to those options. At the permanent custody hearing, both Mother and her attorney informed the juvenile court that M other wanted to attend the hearing via telephone. {¶13} When Mother initially had difficulty connecting to the hearing on each of the two days of the hearing, the juven ile court called her. On the one occasion that Mother’s connection was dropped, the juvenile court immediately stopped the hearing and called Mother again. Mother5

was present for all relevant testimony on which the juvenile co urt relied in rende ring its judgment. Mother’s attorney was present for the entire hearing. Mother t estified on her ow n behalf during

her case-in-chief. {¶14} Mother had notice of her opportunity to appear in person for th e permanent custody hearing. Instead, she chose in the alternative to appear remot ely, effectively waiving any right she may have had to be physically present in the courtroom. Under these circumstances, this Court cannot conclude that the juvenile court erred by allowing Mothe r to appear at the permanent custody hearing via telephone. Nevertheless, even assuming arg uendo some impropriety, it did not rise to the level of plain error requiring reversal. As Mo ther was represented by counsel and was able to participate in a meaningful way during the permanen t custody hearing, she has not demonstrated how she was prejudice d by appearing remotely rathe r than physically present in the courtroom. Accordingly, Mother’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED WHEN IT ADMITTED EXPERT TESTIMONY REGARDING MOTHER’S MENTAL HEALTH DIAGNOSES IN VIOLATION OF [EVID.R.] 702 [ ]. {¶15} Mother argues that the juvenile court erred by admitting the te stimony of a psychological assistant regarding Mother’s mental health diagno ses in violation of Evid.R. 702 which addresses expert testimo ny. This Court disagrees. {¶16} Mother admits that she did not object to the challenged testimo ny at the permanent custody hearing. Accordingly, t his Court reviews for plain err or. {¶17} Although Mother challenges the improper admission of expert tes timony, the record is clear that the psychological assistant did not testif y as an expert. At one point during the psychological assistant’s testimony, when the assistant prosecu tor asked him about the effects of6

a certain diagnosis on parenting abilities, Mother’s attorney o bjected on the ground that the witness had not been qualified to testify as an expert. The State with drew that question. Accordingly, Mother expressly recognized tha t the psychological assistant wa s testifying as a lay witness. {¶18} Evid.R. 701 addresses opinion te stimony by lay witnesses and li mits the testimony to opinions which are “(1) rationally based on the perception o f the witness and (2) helpful to a clear understanding of the witness’ testimony or the determinat ion of a fact in issue.” The psychological assistant’s testimony was based on his perception s of Mother during her selfreported assessment. Mother’s a ttorney acknowledged on the rec ord that the witness’ testimony regarding his observations of Mother was proper lay testimony. Accordingly, Mother’s argument regarding expert testimony is misplaced and rejected. {¶19} To the extent that there may have been error, it does not rise to the level of reversible plain error. The record is rife with evidence of Mother’s ment al health diagnoses and their impact on her ability to parent children. For example, Mother’s case manager at Community Support Services testified regarding Mother’s multiple mental health di agnoses. The CSB caseworker testified that Mother admitted that she had been diagnosed with mental health issues and that she was not taking the medications pre scribed to manage those issue s. Most significantly, the juvenile court admitted certified copies of juvenile records regarding M other’s three older children. Those records contained Mother’s stipulations that she had multiple u ntreated mental health diagnoses, as well as the juvenile court’s judgments terminating Mother’s parental rights as to those three children based in substantial part on the role Mother’s mental health issues played in her inability to provide a safe and stable home for the children. Those reco rds also contained this Court’s opinions wherein we noted Mother’s significant mental health is sues and affirmed the termination of Mother’s parental rights. See In re R.L. , 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-7

3117, and In re A.L. , 9th Dist. Summit Nos. 28345 and 28347, 2016-Ohio-8504. Becau se the juvenile court had evidence of Mother’s mental health diagnoses from multiple sources for consideration, Mother cannot dem onstrate prejudice by the admis sion of the psychological assistant’s testimony. Mother’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY OF THE CHILD TO [CSB] WAS AGAI[N]ST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶20} Mother argues that the juvenile court’s judgment was against th e manifest weight

of the evidence. Thi s Court disagrees. {¶21} In considering whether the juven ile court’s judgment is against the manifest weight of the evidence, this Court “weighs the evidence and all reason able inferences, considers the credibility of witnesses and determines whether in resolving co nflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest misca rriage of justice that the [judgment] must be reversed and a new [hear ing] ordered.” (Internal quota tions and citations omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always be mindf ul of the presumption in favor of the finder of fact.” Id. at ¶ 21. {¶22} Before a juvenile court may termin ate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and co nvincing 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 2 2-month period; the child or another child of the same parent has b een adjudicated abused, neglected , or dependent three times; or that the child cannot be placed with either parent, based on an anal ysis 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 on8

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 in clude: the interaction and interrelationships of the children, the wishes of the children, the custodial history of the children, the children’s need for permanence and whether that can be achi eved without a grant of permanent custody, and whether any of the factors outlined in R.C. 2151.4 14(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see 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 establis hed.” (Internal quot ations 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. {¶23} In its motion for permanent custody, CSB alleged first-prong gr ounds that Father had abandoned the child pursuant to R.C. 2151.414(B)(1)(b), and that Z.S. could not or should not be returned to either parent pursuant to R.C. 2151.414(B)(1)(a) . The evidence supports the juvenile court’s finding that Father abandoned the child. {¶24} CSB premised its allegation that the child could not or should not be returned to her parents on multiple R.C. 2151.414( E) grounds. The juvenile cou rt only made findings as to some of those alleged grounds. Accordingly, this Court does not con sider grounds not found by the trial court. As the first-prong gr ound of abandonment was properly f ound as to Father, we limit our

discussion as to Mother. {¶25} R.C. 2151.414(E) provides, in relevant part: In determining at a hearing [on a motion for permanent custody] 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 releva nt evidence. If the court determines, by clear and convincing evidence, at a [perma nent custody] hearing * * * that one or more of the following exist as to eac h of the child’s parents,9

the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or s hould not be placed with either pa rent: (1) Following the placement of the child outside the child’s ho me and notwithstanding reasonable case planning and diligent efforts b y the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent ha s failed continuously and repeat edly to substantially remedy the conditions causing the child to be placed outside th e child’s home. In determining whether the parents have substantially remedied tho se conditions, the court shall consider parental utilization of medical, psychiatr ic, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental c onduct to allow them to resume and maintai n parental duties[;] * * * (4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate p ermanent home for the child; * * * (11) The parent has had parental rights involuntarily terminate d with respect to a sibling of the child pursuant to [law], and the parent has fail ed to provide clear and convincing evidence to prove tha t, notwithstanding the prior te rmination, the parent can provide a legally secure permanent placement and adequate c are for the health, welfare, and safety of the child; * * *. {¶26} Despite the agency’s allegation of multiple grounds, the juveni le court only needs

to find that one of the alle ged R.C. 2151.414(E) factors existe d to support the court’s finding that the child cannot or should not be placed with her parents pursu ant to R.C. 2151.414(B)(1)(a). In

re T.G. , 9th Dist. Summit No. 29658, 2020-Ohio-4802, ¶ 18, citing In re L.A. , 9th Dist. Summit No. 21531, 2003-Ohio-4790, ¶ 54. While the record supports the juvenile court’s findings as to all three above alleged subsecti ons, this Court focuses our dis cussion on the R.C. 2151.414(E)(11) factor. As to subsection (E)(11), once the agency has proved t hat a parent’s parental rights were previously involuntarily terminated as to a sibling of the subj ect child, the statutory burden then10

shifts to the parent t o prove that she is able to provide a leg ally secure placement for the child. In

re T.G. at ¶ 18. {¶27} CSB presented evidence that Mother previously lost custody of t hree other children who were placed in the permanent custody of the agency. Accord ingly, the burden of proof shifted to Mother to demonstrate by clear and convincing evidence that, notwithstanding the circumstances which gave rise to those involuntary terminations of her parental rights, she was now able to provide a safe and sta ble home for Z.S. Mother fai led to do so. {¶28} Despite long term issues with mental health, homelessness, and unhealthy relationships, Mother testified th at she was able to provide an appropriate home environment for the child. She was living in a 121 square foot room in a board ing house, which she claimed contained a toddler bed, strolle r, highchair, clothes, and toys for the child. Both the caseworker and guardian ad litem testified that Mother’s room was dirty, c luttered, and not an appropriate

environment for a child. The cas eworker added that there was a strong odor of marijuana in the room. Although Mother claimed that her room was not cluttered, she did not present evidence to overcome the significant concerns of the caseworker and guardia n ad litem. {¶29} Mother testified that she was no longer in a relationship with Father who had extensive criminal and drug use histories. Nevertheless, she a dmitted that the outgoing voicemail message on her phone indicated tha t Father also received messag es on that phone. Mother admitted that she allowed Father to use her phone, although she maintained that she had no contact with him. Accordingly, it was not clear that Mother had in fac t ended her unhealthy relationship

with Father. {¶30} Finally, Mother acknowledged he r limited engagement during the second half of

the case. Mother admitted that she had not visited with the ch ild for almost a year at the time of11

the hearing. She offered no reasonable excuse for failing to m aintain a relationship with Z.S. Moreover, although she had ceased participating in case plan se rvices during the past year, she

asserted without clarification tha t she would be fully complian t within six months. {¶31} Based on a thorough review, this Court concludes that Mother fa iled to demonstrate by clear and convincing evidence that she was now able to provi de a legally secure placement for Z.S. She continued to struggle w ith the same issues that led t o the involuntary termination of her parental rights as to three ot her children. Mother did not dem onstrate that she was managing her mental health issues, that she had terminated unhealthy relatio nships, or that she was able to prioritize the needs of the child. Accordingly, the juvenile c ourt’s first-prong finding was not against the manifest w eight of the evidence. {¶32} The agency established that an award of permanent custody was i n the best interest of the child. Z.S. was removed from Mother’s care immediately upon the child’s release from the hospital after birth. Accordingly, the child never lived in Mo ther’s home. After spending ten days in the home of a kinship caregiver who had adopted Mother’s oth er three children, Z.S. was moved to a foster home, where she has r emained throughout the case. The foster parents are friends with the kinship caregiver, so Z.S. has maintained a relationship wi th her half-siblings throughout her

life. {¶33} The guardian ad litem observed that Z.S. has a significant bond with her foster family, which includes another child whom the foster parents ar e adopting. Although Mother visited with the child during her first year of life, Mother ha d no contact with the child during her second year. The guardian ad lite m testified that Z.S. has no bond with Mother and opined that it was unlikely the child would even recognize Mother at this time

.12

{¶34} Z.S. was almost two years old at the time of the permanent cust ody hearing. She was not competent to convey her w ishes regarding custody. The guardian ad litem opined that the

best interest of the child coul d only be met by an award of per manent custody. {¶35} The child had been in foster care for almost two years at the t ime of the hearing and requires permanence. Unfortunate ly, Mother is unable to provid e a safe and stable environment for Z.S. Although she was compliant with case plan objectives at the beginning of the case, Mother ceased participating in mental health services more than a year before the hearing. The agency caseworker was only sporadically able to contact Mother, who al ways said she planned to reengage in services, but failed to do so. {¶36} Mother has a history of homelessness. She was evicted from her subsidized housing during the case because she fell behind in her rent and let Father stay in the home without permission. She later secured a room in a boarding house. The room was too small to

accommodate both Mother and the c hild. In addition, it was clu ttered and unsanitary. {¶37} Mother receives $541 per month in social security disability in come. She claimed to work 15 hours a day for $20 per hour under the table for her landlord, but she could not verify

that income. Mother testified th at she would keep the child wi th her at all times while working so

that Z.S. would be safe. {¶38} Mother’s mental health issues have been well documented through out her history with CSB. Certified judgment e ntries and this Court’s opinions , all admitted into evidence, reference her diagnoses for bipolar disorder, posttraumatic str ess syndrome, depression, personality disorder, substance abuse issues (in remission), an d cognitive delays. Mother ceased participating in services to address her mental health issues. Although she testified that she was compliant with taking her prescribed mental health medications, both the CSB caseworker and13

guardian ad litem testified that the medication bottles in Moth er’s room at the boarding house were empty and had dates indicating th at they were not current presc riptions. Mother could not show the caseworker or guardian ad litem any medications that she wa s taking. {¶39} Mother has failed to visit with Z.S. for over a year without an y reasonable explanation. She has never attended any of the child’s routine medical appointments despite notice of those appointments. {¶40} The guardian ad litem served in the same role in the prior case s involving Mother’s three older children. He was thoroughly aware of the issues th at prevented Mother from being able to provide an appropriate home for her other children, and he testified that Mother had not

ameliorated those concerns. He testified that Mother had not d emonstrated the ability to provide

for Z.S.’ basic needs based on her lack of involvement in servi ces. He opined that the best interest of the child could only be met thr ough an award of permanent cu stody. {¶41} No other viable custodial option exists for Z.S. Although Moth er had moved for legal custody of the child to th e maternal grandmother, the gra ndmother had no relationship with Z.S., demonstrated no interest in obtaining custody, and had a child welfare history regarding her

own children. {¶42} A six-month extension of temporary custody was not warranted un der the statute. R.C. 2151.415(D) requires significant case plan compliance and reasonable cause to believe that reunification of the child with a parent is likely within six m onths. Given Mother’s lack of compliance with case plan objectives during the last year of th e case, there was no basis for an extension of temporary custody , even assuming one could be gran ted given the age of the case. {¶43} One of the statutory factors in R.C. 2151.414(E)(7)-(11) is app licable in this case as to Mother. As previously disc ussed, her parental rights had been involuntarily terminated with14

respect to siblings of Z.S. See R.C. 2151.414(E)(11). Moreover, M other failed to demonstrate by clear and convincing evidence that she could now provide a lega lly secure placement for the child.

Id

. {¶44} Based on a thorough review of t he record, this is not the excep tional case in which the trier of fact clearly lost its way and committed a manifest miscarriage of justice by terminating the parents’ parental rights and awarding permanent custody to CSB. Father abandoned the child. Mother failed to engage in case plan services or otherwise addr ess her mental health issues which historically prevented her from being able to provide a safe an d stable home for a child. Mother’s housing was not appropriate for the child. Mother had not main tained a relationship with Z.S., failing to visit with the child for over a year. There were no viable legal custodians for the juvenile

court’s consideration. Under th ese circumstances, the juvenile court’s finding that it was in the child’s best interest to terminate parental rights and award pe rmanent custody to CSB is supported by clear and convincing evidence. Accordingly, the judgment is not against the manifest weight

of the evidence. Mother’s thi rd assignment of error is overrul ed.

III. {¶45} Mother’s assignments of error are overruled. This judgment of the Summit County Court of Common Pleas, Juven ile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.15

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 to 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, P. J. SUTTON, J. CONCUR.

APPEARANCES: ADAM M. VAN HO, Attorney at law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTI NO, Assistant Prosecuting Attorney, for Appellee.