[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 judgment of the Summit County Court of Common 

Pleas, Juvenile Division, that terminated her parental rights and 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 three 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 dependent and the risk that Z.S. would be 

subjected to abuse or neglect due to ongoing circumstances in her home. See R.C. 2151.04(D). 
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{¶4} CSB sought and obtained the trial court’s determination that the agency’s use of 

reasonable efforts to facilitate reunification with Mother was not required based on the three prior 

involuntary terminations of her parental rights as to the older children. See R.C. 

2151.419(A)(2)(e). Even so, the agency asserted that there were compelling reasons not to move 

for permanent custody of Z.S. at that time because it needed time to investigate Father as a viable 

custodian for the child. Moreover, despite its excusal from using reasonable efforts as to Mother, 

CSB drafted a case plan with reunification 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 temporary custody by agreement of the 

parties. The juvenile court adopted the case plan as an order.

{¶5} Initially, Mother diligently engaged in services and other requirements of her case 

plan. As she continued her involvement with Father, however, Mother became noncompliant, 

rejecting services and failing to adhere to her medication schedule. Father also failed to participate 

in services and visitation. Thereafter, CSB sought and obtained 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 efforts bypass determination as to both parents, CSB 

filed a motion for permanent custody. The parties agreed to continue that hearing, however, to 

allow CSB to assess the maternal grandmother as a possible legal custodian. Mother filed a motion 

for legal custody to the maternal grandmother, or, alternatively, for a six-month extension of 

temporary custody. After a final dispositional hearing, the juvenile court granted CSB’s motion 

for permanent custody and terminated Mother’s and Father’s parental rights regarding Z.S. Mother 

filed a timely appeal in which she raises three assignments of error for review. 
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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 to be physically present during the permanent custody hearing. This 

Court disagrees. 

{¶8} Mother admits that she did not object to appearing at the permanent custody hearing 

by phone. Accordingly, she concedes that this Court reviews for plain error. 

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. 

{¶9} This Court has not determined to date whether the criminal or civil plain error 

standard applies in cases involving dependent, neglected, and/or abused children. In re K.J., 9th 

Dist. Summit No. 29149, 2019-Ohio-123, ¶ 11. We decline to make that determination here, as 

Mother cannot prevail under either standard. 

{¶10} Although parents have a constitutionally protected right to attend 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 be 
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transported to the hearing regarding the termination of parental 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 waiver of the right to be present. To 

hold otherwise would be to allow parents to perpetually delay permanent custody hearings simply 

by failing to appear. 

{¶11} In this case, however, Mother was not precluded from appearing at and 

participating in the permanent custody hearing. In fact, she was present by telephone, by her 

agreement, for the entire hearing, except for very limited preliminary discussions and the testimony 

of a records custodian. In addition, Mother had not been able to connect to the proceedings for the 

initial testimony of a psychological assistant who explained only his client testing protocols during 

that time. Mother was represented by an attorney who was present throughout the entire hearing. 

{¶12} On four separate occasions prior to the permanent custody hearing, the juvenile 

court issued orders informing the parties that they had the option to attend the permanent custody 

hearing either in person or remotely due to the ongoing pandemic. Mother attended the originally 

scheduled permanent custody hearing at which time the juvenile court continued the hearing to 

give CSB more time to assess the maternal grandmother as a possible custodian and reiterated the 

parties’ choice to attend the final hearing in person or electronically. 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 Mother 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 juvenile court called her. On the one occasion that Mother’s connection 

was dropped, the juvenile court immediately stopped the hearing and called Mother again. Mother 
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was present for all relevant testimony on which the juvenile court relied in rendering its judgment. 

Mother’s attorney was present for the entire hearing. Mother testified on her own behalf during 

her case-in-chief. 

{¶14} Mother had notice of her opportunity to appear in person for the permanent custody 

hearing. Instead, she chose in the alternative to appear remotely, 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 Mother to appear at the permanent 

custody hearing via telephone. Nevertheless, even assuming arguendo some impropriety, it did 

not rise to the level of plain error requiring reversal. As Mother was represented by counsel and 

was able to participate in a meaningful way during the permanent custody hearing, she has not 

demonstrated how she was prejudiced by appearing remotely rather 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 testimony of a 

psychological assistant regarding Mother’s mental health diagnoses in violation of Evid.R. 702 

which addresses expert testimony. This Court disagrees. 

{¶16} Mother admits that she did not object to the challenged testimony at the permanent 

custody hearing. Accordingly, this Court reviews for plain error. 

{¶17} Although Mother challenges the improper admission of expert testimony, the 

record is clear that the psychological assistant did not testify as an expert. At one point during the 

psychological assistant’s testimony, when the assistant prosecutor asked him about the effects of 
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a certain diagnosis on parenting abilities, Mother’s attorney objected on the ground that the witness 

had not been qualified to testify as an expert. The State withdrew that question. Accordingly, 

Mother expressly recognized that the psychological assistant was testifying as a lay witness. 

{¶18} Evid.R. 701 addresses opinion testimony by lay witnesses and limits the testimony 

to opinions which are “(1) rationally based on the perception of the witness and (2) helpful to a 

clear understanding of the witness’ testimony or the determination of a fact in issue.” The 

psychological assistant’s testimony was based on his perceptions of Mother during her selfreported assessment. Mother’s attorney acknowledged on the record 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 mental 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 diagnoses. The CSB caseworker 

testified that Mother admitted that she had been diagnosed with mental health issues and that she 

was not taking the medications prescribed to manage those issues. Most significantly, the juvenile 

court admitted certified copies of juvenile records regarding Mother’s three older children. Those 

records contained Mother’s stipulations that she had multiple untreated 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 records also contained this Court’s 

opinions wherein we noted Mother’s significant mental health issues and affirmed the termination 

of Mother’s parental rights. See In re R.L., 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-
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3117, and In re A.L., 9th Dist. Summit Nos. 28345 and 28347, 2016-Ohio-8504. Because the 

juvenile court had evidence of Mother’s mental health diagnoses from multiple sources for 

consideration, Mother cannot demonstrate prejudice by the admission 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 the manifest weight 

of the evidence. This Court disagrees. 

{¶21} 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. 

{¶22} 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 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 
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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 children, the wishes of the children, the custodial history of the children, 

the children’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 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. 

{¶23} In its motion for permanent custody, CSB alleged first-prong grounds 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 court only made findings as to some 

of those alleged grounds. Accordingly, this Court does not consider grounds not found by the trial 

court. As the first-prong ground of abandonment was properly found 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 relevant evidence. If the 

court determines, by clear and convincing evidence, at a [permanent custody] 

hearing * * * that one or more of the following exist as to each of the child’s parents, 
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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: 

(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 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[;] 

* * * 

(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 permanent home for 

the child; 

* * * 

(11) The parent has had parental rights involuntarily terminated with respect to a 

sibling of the child pursuant to [law], and the parent has failed to provide clear and 

convincing evidence to prove that, notwithstanding the prior termination, the parent 

can provide a legally secure permanent placement and adequate care for the health, 

welfare, and safety of the child; 

* * *. 

{¶26} Despite the agency’s allegation of multiple grounds, the juvenile court only needs 

to find that one of the alleged R.C. 2151.414(E) factors existed to support the court’s finding that 

the child cannot or should not be placed with her parents pursuant 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 subsections, this Court focuses our discussion on the R.C. 2151.414(E)(11) 

factor. As to subsection (E)(11), once the agency has proved that a parent’s parental rights were 

previously involuntarily terminated as to a sibling of the subject child, the statutory burden then 
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shifts to the parent to prove that she is able to provide a legally secure placement for the child. In 

re T.G. at ¶ 18. 

{¶27} CSB presented evidence that Mother previously lost custody of three other children 

who were placed in the permanent custody of the agency. Accordingly, 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 stable home for Z.S. Mother failed to do so. 

{¶28} Despite long term issues with mental health, homelessness, and unhealthy 

relationships, Mother testified that she was able to provide an appropriate home environment for 

the child. She was living in a 121 square foot room in a boarding house, which she claimed 

contained a toddler bed, stroller, highchair, clothes, and toys for the child. Both the caseworker 

and guardian ad litem testified that Mother’s room was dirty, cluttered, and not an appropriate 

environment for a child. The caseworker 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 guardian 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 admitted that the outgoing voicemail 

message on her phone indicated that Father also received messages 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 fact ended her unhealthy relationship 

with Father. 

{¶30} Finally, Mother acknowledged her limited engagement during the second half of 

the case. Mother admitted that she had not visited with the child for almost a year at the time of 
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the hearing. She offered no reasonable excuse for failing to maintain a relationship with Z.S. 

Moreover, although she had ceased participating in case plan services during the past year, she 

asserted without clarification that she would be fully compliant within six months. 

{¶31} Based on a thorough review, this Court concludes that Mother failed to demonstrate 

by clear and convincing evidence that she was now able to provide a legally secure placement for 

Z.S. She continued to struggle with the same issues that led to the involuntary termination of her 

parental rights as to three other children. Mother did not demonstrate that she was managing her 

mental health issues, that she had terminated unhealthy relationships, or that she was able to 

prioritize the needs of the child. Accordingly, the juvenile court’s first-prong finding was not 

against the manifest weight of the evidence. 

{¶32} The agency established that an award of permanent custody was in 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 Mother’s home. After spending ten days 

in the home of a kinship caregiver who had adopted Mother’s other three children, Z.S. was moved 

to a foster home, where she has remained throughout the case. The foster parents are friends with 

the kinship caregiver, so Z.S. has maintained a relationship with 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 are adopting. Although Mother 

visited with the child during her first year of life, Mother had no contact with the child during her 

second year. The guardian ad litem testified that Z.S. has no bond with Mother and opined that it 

was unlikely the child would even recognize Mother at this time. 
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{¶34} Z.S. was almost two years old at the time of the permanent custody hearing. She 

was not competent to convey her wishes regarding custody. The guardian ad litem opined that the 

best interest of the child could only be met by an award of permanent custody. 

{¶35} The child had been in foster care for almost two years at the time of the hearing and 

requires permanence. Unfortunately, Mother is unable to provide 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 always 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 child. In addition, it was cluttered and unsanitary. 

{¶37} Mother receives $541 per month in social security disability income. 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 that she would keep the child with her at all times while working so 

that Z.S. would be safe. 

{¶38} Mother’s mental health issues have been well documented throughout her history 

with CSB. Certified judgment entries and this Court’s opinions, all admitted into evidence, 

reference her diagnoses for bipolar disorder, posttraumatic stress syndrome, depression, 

personality disorder, substance abuse issues (in remission), and 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 and 
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guardian ad litem testified that the medication bottles in Mother’s room at the boarding house were 

empty and had dates indicating that they were not current prescriptions. Mother could not show 

the caseworker or guardian ad litem any medications that she was taking. 

{¶39} Mother has failed to visit with Z.S. for over a year without any 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 cases involving Mother’s 

three older children. He was thoroughly aware of the issues that 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 demonstrated the ability to provide 

for Z.S.’ basic needs based on her lack of involvement in services. He opined that the best interest 

of the child could only be met through an award of permanent custody. 

{¶41} No other viable custodial option exists for Z.S. Although Mother had moved for 

legal custody of the child to the maternal grandmother, the grandmother 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 under 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 months. Given Mother’s lack of 

compliance with case plan objectives during the last year of the case, there was no basis for an 

extension of temporary custody, even assuming one could be granted given the age of the case. 

{¶43} One of the statutory factors in R.C. 2151.414(E)(7)-(11) is applicable in this case 

as to Mother. As previously discussed, her parental rights had been involuntarily terminated with 
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respect to siblings of Z.S. See R.C. 2151.414(E)(11). Moreover, Mother failed to demonstrate by 

clear and convincing evidence that she could now provide a legally secure placement for the child. 

Id. 

{¶44} Based on a thorough review of the record, this is not the exceptional 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 address her mental health issues which 

historically prevented her from being able to provide a safe and stable home for a child. Mother’s 

housing was not appropriate for the child. Mother had not maintained 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 these circumstances, the juvenile court’s finding that it was in the 

child’s best interest to terminate parental rights and award permanent custody to CSB is supported 

by clear and convincing evidence. Accordingly, the judgment is not against the manifest weight 

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

III. 

{¶45} Mother’s assignments of error are overruled. This judgment of the Summit County 

Court of Common Pleas, Juvenile Division, is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 
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 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. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 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. DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.