      [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




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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                     OHIO FIRST DISTRICT COURT OF APPEALS



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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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-term-

care 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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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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                      OHIO FIRST DISTRICT COURT OF APPEALS




                       [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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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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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                      OHIO FIRST DISTRICT COURT OF APPEALS



                   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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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 permanent-

custody determination, a juvenile court must consider all relevant factors, including:

(a) the child’s interaction with parents, siblings, relatives, foster caregivers and out-

of-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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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶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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                      OHIO FIRST DISTRICT COURT OF APPEALS



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.




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