[Cite as In re J.S., 2017-Ohio-75.]


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

IN RE: J.S.                                          C.A. Nos.     28342
                                                                   28344



                                                     APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
                                                     CASE No.   DN 14-09-589

                                  DECISION AND JOURNAL ENTRY

Dated: January 11, 2016



        SCHAFER, Judge.

        {¶1}     Appellants, Danielle S. (“Mother”) and Curtis S. (“Father”), appeal from a

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

their parental rights to their minor child and placed him in the permanent custody of Summit

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

                                                I.

        {¶2}     Mother and Father are the natural parents of J.S., born December 31, 2013.

Although Mother has one other child and Father has three other children, none of those children

are parties to this appeal. Mother’s older child is relevant to this appeal because she was the

reason that CSB became involved with this family.

        {¶3}     On May 1, 2014, Mother’s then five-year-old child, V.S., arrived at school with

visible marks on her face. She disclosed to school personnel that Mother had repeatedly hit her

that morning because she forgot something that she needed for school. The school contacted the
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police about the alleged abuse and also reported that V.S. often came to school unclean and was

frequently absent or tardy. V.S. was removed from Mother’s custody and was later placed with

her father.

        {¶4}   At the age of four months old, J.S. was also removed from the custody of Mother

and Father pursuant to Juv.R. 6 and placed in the home of a non-relative kinship provider. CSB

implemented a voluntary case plan with Mother and Father, but neither parent complied with the

requirements of the reunification plan during the next several months.          Consequently, on

September 17, 2014, CSB filed a complaint to allege that J.S. was a dependent child. The trial

court later adjudicated him a dependent child and placed him in the temporary custody of CSB.

        {¶5}   During the following year, the parents continued to struggle with illegal drug use

and related criminal problems and failed to maintain consistent contact with J.S. or CSB. Each

parent visited J.S. only a few times and lost contact with CSB for months at a time.

        {¶6}   On February 12, 2016, CSB moved for permanent custody of J.S. Following a

hearing on the motion, the trial court terminated parental rights and placed J.S. in the permanent

custody of CSB.      Mother and Father separately appealed and their appeals were later

consolidated. Each parent raises three similar assignments of error. For ease of review, their

assigned errors will be consolidated and rearranged.

                                                II.

                                Mother’s Assignment of Error I

        The trial court committed plain error in allowing the testimony of the [CSB]
        caseworker that violated the rules of evidence regarding the admission of
        hearsay.
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                                  Father’s Assignment of Error I

       The trial court committed plain error[] in allowing the testimony of the
       [CSB] caseworker violating the rules of evidence regarding the admission of
       hearsay[.]

                                Mother’s Assignment of Error III

       Mother’s trial attorney was ineffective when he failed to object to the hearsay
       testimony provided by the [CSB] worker, thus depriving Mother of
       meaningful participation in the permanent custody trial[.]

                                 Father’s Assignment of Error III

       Father’s trial attorney was ineffective when he failed to object to the hearsay
       testimony provided by the [CSB] worker, thereby depriving Father of
       meaningful participation in the permanent custody trial[.]

       {¶7}    Through these assignments of error, the parents argue that the trial court

committed reversible error by considering testimony of the caseworker about facts that occurred

before October 2015, when he was first assigned to the case. They argue that, because the

caseworker had merely reviewed the prior caseworker’s notes but had no firsthand knowledge

about the parents’ case plan compliance before he was assigned to the case, the trial court erred

in allowing him to testify about those facts. They did not object to any of this testimony at the

hearing, but argue that its admission constituted plain error and/or that their trial attorneys were

ineffective for failing to object its admission.

       {¶8}    To establish a claim of ineffective assistance of counsel, the parents must

demonstrate that their trial attorneys’ performance was deficient and that the deficient

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

establish prejudice, they must show that there is a reasonable probability that, but for the

attorneys’ errors, the result of the proceeding would have been different. Id. at 694.
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       {¶9}    The standard of review for plain error is similar to the standard for reviewing a

claim of ineffective assistance of counsel, although plain error requires more certain proof of

prejudice to the appellant. While ineffectiveness requires proof of a reasonable probability that

the trial result would have been different but for the error, plain error under the criminal standard

requires proof that the trial result clearly would have been otherwise. State v. Murphy, 91 Ohio

St.3d 516, 559 (2001) (Cook, J, concurring).         The civil plain error standard requires the

demonstration of an even greater level of error, as it must be one that rises to the level of

challenging the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson, 79

Ohio St.3d 116 (1997), syllabus. This Court has not determined which is the appropriate plain

error standard to apply in cases involving the termination of parental rights and it need not do so

now. See In re D.S., 9th Dist. Summit No. 24619, 2009-Ohio-3167, ¶ 10.

       {¶10} In other words, the parents must demonstrate not only that prejudice resulted from

the admission of the caseworker’s testimony, but also that the prejudice was so extreme that it

rose to the level required to demonstrate plain error or ineffective assistance of counsel. Even if

the parents could demonstrate that the caseworker improperly testified about facts that predated

his involvement with the case, they have failed to demonstrate that the outcome of the hearing

would have been different without the caseworker’s testimony because several other witnesses,

including the parents themselves, testified about those same facts.

       {¶11} Through her own testimony, Mother conceded that she had failed to address any

of the reunification requirements of the case plan since the beginning of this case. She admitted

that she had been using heroin since CSB filed its complaint in this case in September 2014.

Although Mother offered a variety of reasons for her failure to do so, she conceded that she had

failed to maintain consistent contact with CSB, the guardian ad litem, or the trial court and that
                                                 5


she had visited J.S. only a few times since he was first removed from her custody. She admitted

that she was in a downward spiral at one point, went on a four-month drug binge, and that she

did not submit to drug testing or communicate with the prior caseworker during that time. At the

time of the hearing, Mother had just recently become involved in a drug treatment program. She

testified that she was finally addressing her heroin addiction because she did not want to die.

She explained that she needed to focus on her own need to achieve sobriety before she could

help anyone else.

       {¶12} Similarly, Father testified that he had used illegal drugs and failed to maintain

consistent contact with CSB or his child throughout most of this two-year case. He explained

that he failed to visit J.S. initially because he was depressed and did not visit later because there

was an outstanding warrant for his arrest on felony heroin charges and he did not want to be

arrested.

       {¶13} Consequently, the parents have failed to demonstrate plain error from the

admission of the caseworker’s testimony about their lack of case plan compliance before he was

assigned to the case or that their trial attorneys were ineffective for failing to object to that

testimony. Their first and third assignments of error are overruled accordingly.

                                Mother’s Assignment of Error II

       The trial court erred in granting permanent custody to [CSB] as it was
       against the manifest weight of the evidence.

                                Father’s Assignment of Error II

       The trial court erred in granting permanent custody to [CSB] as it was
       against the manifest weight of the evidence[.]

       {¶14} Finally, both parents argue that the trial court’s judgment was not supported by

the evidence. Before a juvenile court may terminate parental rights and award permanent
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custody of children to a proper moving agency it must find clear and convincing evidence of

both prongs of the permanent custody test: (1) that the children are abandoned; orphaned; have

been in the temporary custody of the agency for at least 12 months of a consecutive 22-month

period; they or another child in a parent’s custody have been adjudicated abused, neglected, or

dependent on three separate occasions; or they 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 children, 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).

        {¶15} The trial court found that CSB satisfied the first prong of the permanent custody

test because the children had been in the temporary custody of CSB for more than 12 of the prior

22 months and neither parent disputes that finding. Instead, they confine their challenge to the

trial court’s best interest determination.

        {¶16} When determining the children’s best interests under R.C. 2151.414(D), the

juvenile court must consider all relevant factors, including the interaction and interrelationships

of the children, their wishes, the custodial history of the children, and their need for permanence

in their lives. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.

        {¶17} Throughout this case, the interaction between J.S. and each of his parents had

been limited to supervised visitation because neither parent adequately addressed their substance

abuse problems or any of the other reunification requirements of the case plan. Moreover, each

parent visited J.S. only a few times during the two-year life of this case. At the time of the

hearing, Mother had visited J.S. only twice during the prior nine months and Father had not seen

him at all during that period. The caseworker observed one of Mother’s two visits during that
                                                  7


period and explained that J.S. responded to her with “stranger danger” because he saw her so

rarely.

          {¶18} Although the parents offered excuses for their failure to maintain contact with

their young child, and Mother testified that she had been a good mother and wanted to fulfill that

role again, the evidence was not disputed that neither parent had developed a bond or a parent-

child relationship with J.S. Mother testified that she missed J.S., but when describing how he

had changed during a 10-month-period when she had not seen him, she testified simply that he

was talking more, was more observant, and was starting to throw temper tantrums.

          {¶19} On the other hand, J.S. had developed a loving bond with the foster family with

whom he had lived for nearly two years. The caseworker and guardian ad litem testified about

the strong bond between J.S. and the foster family and explained that he was doing very well in

that home. The foster mother expressed a desire to adopt J.S. if the parents’ rights were

terminated.

          {¶20} Because J.S. was less than three years old at the time of the hearing, the guardian

ad litem spoke on his behalf. She opined that permanent custody was in his best interest because

the parents had made little effort to regain custody or to even maintain a relationship with J.S.

and the foster mother was prepared to provide him with a safe and stable permanent home.

          {¶21} By the time of the hearing, through CSB’s voluntary and involuntary involvement

with this family, J.S. had been living outside the custody of his parents for more than two years.

He had lived in two different temporary placements since he was four months old and was in

need of a legally secure permanent placement.

          {¶22} Nether parent was able to provide J.S. with a stable permanent home at the time

of the hearing or in the foreseeable future and CSB had been unable to find any suitable relatives
                                                 8


who were willing to do so. Consequently, the trial court found that a legally secure permanent

placement would only be achieved by placing J.S. in the permanent custody of CSB.

       {¶23} The parents have failed to demonstrate that the trial court’s permanent custody

decision was not supported by the evidence presented at the hearing. Their second assignments

of error are overruled.

                                                III.

       {¶24} The parents’ 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.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

DANIEL R. BACHE, Attorney at Law, for Appellant.

MADELINE LEPIDI-CARINO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.

ANGELA GRINGO, Guardian ad Litem.
