[Cite as In re U.D., 2019-Ohio-512.]


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

IN RE: U.D.                                           C.A. No.      29195



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 16-11-986

                                 DECISION AND JOURNAL ENTRY

Dated: February 13, 2019



        HENSAL, Judge.

        {¶1}     Appellant, Tamirra L. (“Mother”), appeals from a judgment of the Summit

County Court of Common Pleas, Juvenile Division, that terminated her parental rights and

placed her minor child in the permanent custody of Summit County Children Services Board

(“CSB”). This Court affirms.

                                                 I.

        {¶2}     Mother has a lengthy history with CSB with her older children dating back to

2008. Through separate juvenile court cases, Mother’s parental rights to U.D.’s five older

siblings were involuntarily terminated. The case plans in those cases focused on Mother’s long-

standing untreated mental health and substance abuse problems. During the prior cases, Mother

made little progress on the reunification goals of the case plans. Throughout the prior cases,

Mother continued to struggle with serious mental health and substance abuse problems, did not

visit her children regularly, and failed to maintain contact with CSB.
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       {¶3}    Mother gave birth to U.D. on November 16, 2016. Two days later, CSB filed a

complaint, alleging that U.D. was a dependent child because of Mother’s untreated mental health

and substance abuse problems and because she had involuntarily lost custody of five older

siblings for those same reasons. Mother had tested positive for cocaine during her pregnancy

with U.D. and, after the child’s birth, admitted that she continued to struggle with her long-term

problems with substance abuse and unstable mental health.

       {¶4}    U.D. was later adjudicated a dependent child and placed in the temporary custody

of CSB. Mother had been diagnosed with schizoaffective disorder, and the case plan required

her to engage in ongoing medication management and counseling. Although Mother engaged in

some mental health treatment, she did not sign an information release to enable CSB to verify

her compliance. Mother also failed to address her substance abuse problems. She did not

engage in drug treatment, failed to comply with regular drug screening, and, when she did submit

to drug testing, she often tested positive for cocaine and/or marijuana.

       {¶5}    CSB eventually moved for permanent custody of U.D., alleging numerous

grounds under Revised Code Section 2151.414(E), including that Mother’s parental rights to five

of U.D.’s siblings had been involuntarily terminated and Mother had failed to demonstrate that

she could now provide this child with a suitable home. See R.C. 2151.414(E)(11).

       {¶6}    The matter proceeded to a final evidentiary hearing before a visiting judge.

Mother failed to appear at the hearing. Her trial counsel informed the court that Mother was

aware of the hearing and that he did not know why she was not there. Nevertheless, Mother’s

trial counsel continued to advocate on her behalf throughout the hearing. Following the hearing,

the trial court terminated parental rights and placed U.D. in the permanent custody of CSB.

Mother appeals and raises two assignments of error, which will be addressed together because
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they are closely related. Father did not appeal but filed a brief as an appellee, joining in

Mother’s assignments of error.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR AND
       VIOLATED MOTHER’S RIGHTS TO DUE PROCESS WHEN IT GRANTED
       PERMANENT CUSTODY ON GROUNDS NOT ALLEGED IN THE MOTION
       FOR PERMANENT CUSTODY.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR
       WHEN IT TERMINATED MOTHER’S PARENTAL RIGHTS AS THE
       EVIDENCE WAS NOT SUPPORTED BY CLEAR AND CONVINCING
       EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶7}   Mother raises two assignments of error pertaining to the merits of the trial court’s

permanent custody decision. First, she challenges some of the trial court’s findings on the first

prong of the permanent custody test. Next, she asserts that the permanent custody decision was

not supported by the evidence presented at the hearing.

       {¶8}   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 in a parent’s custody has been adjudicated abused, neglected, or dependent

on three separate occasions; or the child cannot be placed with either parent within a reasonable

time or should not be placed with either parent, based on an analysis under Revised Code Section

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
                                                   4


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

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

       {¶9}    Mother’s first assignment of error is that the trial court committed reversible error

by granting permanent custody based on first prong grounds that CSB had not alleged in its

permanent custody motion. This Court has repeatedly recognized that, as long as the trial court

properly found one of the alleged grounds for permanent custody, the parent suffered no

prejudice by any error in the trial court’s alternative first prong findings. See, e.g., In re S.C., 9th

Dist. Summit No. 27676, 2015-Ohio-2623, ¶ 30; In re K.C., 9th Dist. Lorain No. 18CA011258,

2018-Ohio-2348, ¶ 11, 21 (holding that, although the trial court erred in basing its permanent

custody decision on a ground that was not alleged in the motion, the error was harmless because

Mother had notice of an alternative ground that was properly alleged and proven at the hearing).

Mother does not challenge the trial court’s alternative finding that U.D. could not or should not

be returned to her custody based on more than one factor set forth in Section 2151.414(E).

       {¶10} Mother’s second assignment of error is that the trial court’s permanent custody

decision was not supported by the evidence. The trial court found that CSB satisfied the first

prong of the permanent custody test for several alternative reasons, including that the child could

not or should not be returned to either parent. See R.C. 2151.414(E). The trial court explicitly

found that, among other grounds under Revised Code Section 2151.414(E), that “Mother has had

five children removed by previous Court involvement and both parents continue to have

unresolved mental health and substance abuse issues.” See R.C. 2151.414(E)(11). Although

Mother implies that the trial court’s finding under Section 2151.414(E)(11) was legally deficient

because the court did not cite to (E)(11) or fully quote its language, she cites no authority to

support that argument, nor is this Court aware of any.
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       {¶11} The trial court’s finding under Section 2151.414(E)(11) was supported by the

undisputed evidence presented at the hearing. CSB presented certified copies of journal entries

and other filings from the cases involving Mother’s five older children.             That evidence

demonstrated that each of those siblings was ultimately placed in the permanent custody of CSB.

Moreover, the evidence demonstrated that those children were removed because of Mother’s

ongoing mental health and substance abuse problems, the same issues involved in this case.

       {¶12} Next, the trial court was required to consider whether permanent custody was in

U.D.’s best interest. When determining the child’s best interest under Revised Code Section

2151.414(D), the juvenile court must consider all relevant factors, including the interaction and

interrelationships of the child, the child’s wishes, the custodial history of the child, the need for

permanence in the child’s life, and whether any of the factors set forth in Section 2151.414(E)(7)

to (11) apply to the facts of the case. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos.

24834 and 24850, 2009-Ohio-6284, ¶ 11.

       {¶13} During this case, Mother’s interaction with U.D. was limited to supervised

visitation. Although the caseworker testified that Mother’s interaction during visits was usually

appropriate, she expressed concern that Mother’s attendance at her scheduled visits had been

sporadic. The last time that Mother attended a visit with U.D. was more than five months before

the permanent custody hearing. The guardian ad litem questioned whether there was a parent-

child bond between Mother and U.D. because Mother had spent so little time with the child.

       {¶14} Because U.D. was too young to express his own wishes, the guardian ad litem

spoke on his behalf. She opined that permanent custody was in the best interest of U.D. because

neither parent could meet the child’s basic needs. Specifically as to Mother, the guardian
                                               6


expressed concern that she had not adequately addressed her long-standing and serious substance

abuse and mental health problems.

       {¶15} U.D. had never lived with Mother but had spent his entire life living in temporary

placements. He was in need of a legally secure permanent placement, but his parents were not

prepared to provide him with a stable home and CSB had been unable to find a suitable relative

who was willing and able to do so.

       {¶16} Finally, despite Mother’s argument to the contrary, the trial court did explicitly

consider the fact that Mother’s parental rights to five older children had been involuntarily

terminated and Mother continued to exhibit the same parenting problems that led to the prior

terminations of parental rights. See R.C. 2151.414(D)(1)(e); R.C. 2151.414(E)(11).       After

repeated intervention by CSB and nearly 10 years of case planning efforts by the agency, Mother

continued to struggle with serious mental health and substance abuse problems.

       {¶17} Given the evidence presented at the hearing, the trial court reasonably concluded

that permanent custody was in the best interest of U.D.         Because Mother has failed to

demonstrate any prejudicial error in the trial court’s permanent custody judgment, her

assignments of error are overruled.

                                              III.

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

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

                                                                            Judgment affirmed.




       There were reasonable grounds for this appeal.
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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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

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

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.

CARA FORD, Attorney at Law, for Appellee.

CHRISTINA BOLLMAN, Guardian ad Litem.
