[Cite as In re L.C., 2019-Ohio-5222.]


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

IN RE: L.C.                                            C.A. Nos.     29459
       Z.G.                                                          29471
       Z.G.                                                          29473
       Z.G.                                                          29474
       Z.G.                                                          29475
                                                                     29476



                                                       APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
                                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
                                                       CASE Nos. DN 16-07-574
                                                                  DN 16-07-575
                                                                  DN 16-07-576
                                                                  DN 16-07-577
                                                                  DN 16-07-578

                                 DECISION AND JOURNAL ENTRY

Dated: December 18, 2019



        CARR, Judge.

        {¶1}     Appellants, L.G. (“Mother”) and P.C. (“Father C.”), appeal from a judgment of

the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental

rights and placed their minor children in the permanent custody of Summit County Children

Services Board (“CSB”). This Court affirms.

                                                  I.

        {¶2}     Mother is the biological mother of the five minor children at issue in this appeal:

L.C., born November 29, 2004; Z.G., born May 13, 2006; Z.G., born February 20, 2008; Z.G.,
                                                 2


born January 1, 2010; and Z.G., born April 3, 2014. Father C. is the father of only the middle

child, Z.G., born February 20, 2008. The other fathers did not appeal the trial court’s judgment.

       {¶3}    CSB has a lengthy history with this family that has included six abuse, neglect,

and dependency cases dating back to 2004 when L.C. was an infant. During the case before this

one, the juvenile court eventually placed the children in the legal custody of their maternal

grandmother.    This case began on July 11, 2016, when Akron police removed these children

from the home of their grandmother pursuant to Juv.R. 6. The children were all adjudicated

dependent in this case on October 24, 2016.

       {¶4}    Several weeks later, CSB moved for permanent custody of all five children. The

first permanent custody hearing was held as scheduled on March 9, 2017, before a visiting judge.

None of the parents appeared, nor did any counsel on their behalf. After the hearing, the trial

court entered judgment, terminating parental rights and awarding permanent custody of the

children to CSB.

       {¶5}    Mother appealed from that judgment and this Court reversed and remanded

because Mother was denied proper notice and an opportunity to be heard at the permanent

custody hearing.   In re L.C., 9th Dist. Summit No. 28718, 2018-Ohio-370, ¶ 1. Specifically,

Mother was not properly served with the permanent custody motion, and she did not have the

opportunity to participate at the final hearing to defend against CSB’s motion. Id. at ¶ 23.

       {¶6}    On remand, CSB again moved for permanent custody. During April 2018, CSB

first became aware of Father C. as a potential father of the child Z.G. who was born on February

20, 2008. Father C. did not establish his paternity, however, until February 2019, shortly before

the permanent custody hearing.
                                                3


       {¶7}    The matter proceeded to a final hearing. Mother appeared at the hearing and was

represented by counsel. Father C. was incarcerated at the time, had informed his counsel that he

did not want to be transported to the hearing, but that he wanted to be represented by counsel.

Through counsel, Father expressed that he supported Mother receiving custody of his child.

       {¶8}    Following the hearing, the trial court found, among other first prong grounds, that

CSB had established grounds under R.C. 2151.414(B)(1)(e) because the children had been

adjudicated dependent on at least three separate occasions. The trial court also found that

permanent custody was in the best interest of each child. Consequently, it terminated parental

rights and placed the children in the permanent custody of CSB.

       {¶9}    Mother and Father C. appeal, raising a total of seven assignments of error. This

Court will consolidate and rearrange some of their assigned errors for ease of review.

                                                    II.

                              MOTHER’S ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(E)
       BECAUSE ONE OF THE CHILDREN [HAD] NOT BEEN ADJUDICATED
       ABUSED, [NEGLECTED], OR DEPENDENT ON THREE SEPARATE
       OCCASIONS SINCE THE STATUTE HAS BEEN IN EFFECT.

                           FATHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN APPLYING R.C. 2151.414(B)(1)(E)
       RETROACTIVELY AS TO [FATHER’S CHILD].

       {¶10} Both parents challenge the trial court’s first prong finding that the children had

been adjudicated dependent on three separate occasions. R.C. 2151.414(B)(1)(e). 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
                                                4


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 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 an analysis under

R.C. 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).

       {¶11} The trial court found that the first prong of the permanent custody test was

satisfied for alternative reasons, including that all five children had been adjudicated dependent

on three occasions. Effective September 17, 2014, R.C. 2151.414(B)(1)(e) provides a first-prong

ground for permanent custody if the court finds by clear and convincing evidence that:

       The child or another child in the custody of the parent or parents from whose
       custody the child has been removed has been adjudicated an abused, neglected, or
       dependent child on three separate occasions by any court in this state or another
       state.

       {¶12} The trial court explicitly found that each child had been adjudicated dependent on

at least three separate occasions. As to all but Father C’s child, the trial court identified three

adjudications for each child from dependency cases in 2014, 2015, and 2016. The court also

found that several of the children had been adjudicated dependent and/or abused in additional

juvenile court cases from 2004 through 2010.

       {¶13} The evidence was not disputed that four of these five children were adjudicated

three separate times after the September 17, 2014 effective date of R.C. 2151.414(B)(1)(e). Both

parents, however, assert that Father C’s child was adjudicated only twice after this provision’s

effective date, and the trial court relied on additional adjudications of that child that occurred

before September 2014. Because the trial court relied on adjudications of Father C.’s child that
                                                   5


predated the effective date of R.C. 2151.414(B)(1)(e), both parents assert that the trial court

impermissibly applied the statute retroactively.

       {¶14} This Court need not conduct a legal analysis of that issue in this appeal, however.

Even if this Court were to accept the parents’ legal argument that relying on earlier adjudications

would constitute an impermissible retroactive application of the statute, it was unnecessary for

the trial court to rely on the earlier adjudications of Father C.’s child. The evidence was not

disputed that the other four children had been adjudicated on three separate occasions after the

effective date of this provision. R.C. 2151.414(B)(1)(e) is satisfied if any one of these children,

or another child in the custody of the parent or parents from whom the child was removed, has

been adjudicated at least three times. See, e.g., In re A.S., 9th Dist. Summit No. 28743, 2017-

Ohio-8984, ¶ 5.

       {¶15} Although this Court has held that the trial court cannot aggregate the

adjudications of more than one child to reach the three adjudications required by R.C.

2151.414(B)(1)(e), by it plain terms, this provision requires that one child, not all of them, has

been adjudicated at least three times. See In re A.W., 9th Dist. Lorain No. 17CA011123, 2017-

Ohio-7786, ¶ 17 (emphasizing that one of the parent’s children must have been adjudicated three

times). Because this provision was clearly satisfied by the three adjudications of each of the

other children, it was not necessary for the trial court to rely on pre-2014 adjudications of Father

C.’s child. Therefore, any potential error in the trial court looking to those prior adjudications

was harmless. Mother’s third and Father’s second assignments of error are overruled.

                               MOTHER’S 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 [CSB’S]
       MOTION FOR PERMANENT CUSTODY.
                                                 6


                              MOTHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(D)
       BECAUSE THE CHILDREN [HAD] NOT BEEN IN THE TEMPORARY
       CUSTODY OF A PUBLIC CHILDREN SERVICES AGENCY FOR TWELVE
       OR MORE MONTHS OF A CONSECUTIVE TWENTY-TWO-MONTH
       PERIOD.

                               FATHER’S ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN FINDING THAT [FATHER’S CHILD] HAD
       BEEN IN AGENCY CUSTODY FOR TWELVE OU[T] OF TWENTY-TWO
       MONTHS.

       {¶16} Through these assignments of error, Mother and Father assert that the trial court

erred in granting permanent custody under grounds that were not alleged in the complaint and/or

established by the evidence. Part of Mother’s argument is that CSB did not properly allege the

three adjudication first prong ground for permanent custody because it did not explicitly cite to

R.C. 2151.414(B)(1)(e).

       {¶17} Although CSB’s motion for permanent custody did not cite to the subsection of

the statute, it specifically alleged that “[a]ll five children have been adjudicated dependent on

three separate occasions.” Because the three prior adjudication language appears only in this

subsection of R.C. 2151.414, these parents received adequate notice that CSB was alleging R.C.

2151.414(B)(1)(e) as a first prong ground for permanent custody. See, e.g., In re N.M.P., 11th

Dist. Portage No. 2018-P-0056, 2018-Ohio-5072, ¶ 64; In re Moore, 9th Dist. Summit No.

19217, 1999 WL 1215294, *10 (Dec. 15, 1999). Moreover, CSB explicitly argued this ground at

the permanent custody hearing and presented certified copies of juvenile court records to support

it, without objections from any of the parties. Consequently, the first prong ground under R.C.

2151.414(B)(1)(e) was properly before the trial court and, as discussed already, was established

by clear and convincing evidence to support the trial court’s finding.
                                                 7


         {¶18} The parents’ primary argument under these assigned errors is that the trial court

erred in finding that the first prong of the permanent custody test was satisfied under the “12 of

22” provision of R.C. 2151.414(B)(1)(d) because that ground was not alleged in the complaint or

supported by the evidence. This Court has repeatedly held, however, that if one of the trial

court’s first prong findings is supported by the record, the parent suffers no prejudice from any

error in the trial court’s alternative findings. See, e.g., In re U.D., 9th Dist. Summit No. 29195,

2019-Ohio-512, ¶ 9. Although the parents challenge the trial court’s findings under the “12 of

22” provision, this Court has already determined that the trial court’s alternative finding under

R.C. 2151.414(B)(1)(e) was supported by the evidence.          Consequently, the parents cannot

demonstrate reversible error because they suffered no prejudice from any error in the trial court’s

“12 of 22” finding. Father’s first and Mother’s first and second assignments of error are

overruled.

                           FATHER’S ASSIGNMENT OF ERROR III

         THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST WEIGHT
         OF THE EVIDENCE.

         {¶19} Father C’s final assignment of error is that the trial court’s permanent custody

decision as to his child is not supported by the evidence because CSB failed to make reasonable

efforts to reunify him with his child. Specifically, he asserts that CSB did not use reasonable

efforts because it did not include him on the case plan until after the permanent custody hearing

began.

         {¶20} Father was represented by counsel in the trial court and did not raise this issue at

or before the permanent custody hearing. He has forfeited all but plain error and has failed to

argue or demonstrate plain error. In re R.P., 9th Dist. Summit No. 28097, 2017-Ohio-276, ¶ 7.

In fact, Father C. has failed to demonstrate any error because the delay in CSB including Father
                                                   8


C. on the case plan was because Father C. did not establish his paternity until shortly before the

permanent custody hearing. Father C’s inability to be reunited with his child was caused by his

own inaction, not by any lack of reunification efforts by CSB. Father C’s third assignment of

error is overruled.

                           MOTHER’S ASSIGNMENT OF ERROR IV

        MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
        HER TRIAL ATTORNEY DID NOT OBJECT TO LACK OF A VALID
        BINDING JOURNALIZED CASE PLAN THROUGHOUT THE PENDENCY
        OF THIS CASE.

        {¶21} Mother’s fourth assignment of error is that she received ineffective assistance of

trial counsel because counsel did not object to the trial court’s failure to properly journalize the

initial case plan filed by CSB on August 15, 2016. Because Mother’s trial counsel did not timely

raise this issue in the trial court, she asserts that her trial counsel was ineffective for failing to do

so.

        {¶22} To establish a claim of ineffective assistance of counsel, Mother must

demonstrate that her trial counsel’s performance was deficient, and that the deficient

performance prejudiced her case. Strickland v. Washington, 466 U.S. 668, 687 (1984). A

“deficient performance” is one that fell below an objective standard of reasonableness. Id. at

687-88. To establish prejudice, Mother must show that there is a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been different. Id. at 694.

        {¶23} Although Mother’s trial counsel failed to object to the trial court’s failure to adopt

the case plan, Mother cannot prove that, but for counsel’s failure, the outcome of the proceedings

would have been different. To begin with, had trial counsel raised a timely challenge to the trial

court’s failure to adopt the case plan in its 2016 dispositional order, the trial court likely would

have corrected its oversight and adopted the case plan.
                                                  9


       {¶24} Moreover, Mother explicitly agreed to the requirements of the case plan and all

parties proceeded through this case as if the case plan had been properly adopted and made an

order of the court.     CSB provided Mother with services and Mother does not argue or

demonstrate otherwise. Furthermore, Mother’s parental rights were not terminated under R.C.

2151.414(E)(1), which would have required CSB to prove that she failed to comply with the case

plan and/or remedy the conditions that caused the children to be placed outside the home.

Because Mother has failed to establish that the results of these proceedings would have been

different if trial counsel had timely raised this issue, her fourth assignment of error is overruled.

                                                 III.

       {¶25} Mother’s and Father’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.

       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.
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      Costs taxed to Appellants.




                                                 DONNA J. CARR
                                                 FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

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

LESLIE GRASKE, Attorney at Law, for Appellant.

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

ANNETTE POWERS, Attorney at Law, for the Children.

JOE KERNAN, Guardian ad Litem.
