[Cite as In re D.T., 2012-Ohio-3552.]


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

IN RE: D.T.                                           C.A. No.      26344



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 09-09-759

                                 DECISION AND JOURNAL ENTRY

Dated: August 8, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Appellant, Tiffany T. (“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 is the natural mother of D.T., born September 6, 2009. D.T.’s father lived

with Mother and participated in the proceedings below. Because he is not a party to this appeal,

however, this Court will not focus on his role as D.T.’s father.

        {¶3}     Five days after D.T.’s birth, CSB filed a complaint, alleging that he was a

dependent child for several reasons, including that his home was unsafe and unsanitary and that

Mother lacked the ability to care for him due to her cognitive delays and serious, untreated
                                                  2


mental health problems. On November 24, 2009, D.T. was adjudicated a dependent child. He

was later placed in the temporary custody of CSB.

        {¶4}      CSB’s primary concerns about Mother’s ability to care for D.T. were her

untreated mental illness and her cognitive impairment. Mother had been diagnosed with bipolar

disorder, depression, and anxiety, but was not then involved in counseling or medication

management.       Consequently, her moods were not stabilized and she would cycle between

periods of depression, during which she spent the entire day in bed, and periods of mania, during

which she became agitated, angry, and aggressive. Therefore, one case plan reunification goal

required Mother to regulate her mood swings by participating in medication management with a

psychiatrist and counseling with a licensed therapist.

        {¶5}      Mother’s cognitive impairment was at a borderline level, meaning that she was

not intellectually disabled, but her low level of intellectual functioning and lack of insight

impaired her critical reasoning. CSB initially believed, however, that Mother’s intellectual

limitations could be addressed through intensive parenting classes.

        {¶6}      Although CSB continued to have concerns about Mother’s ability to care for D.T.,

temporary custody was extended to allow her more time to work on the reunification goals of the

case plan. CSB sought permanent custody when the first six-month extension expired, but the

trial court extended temporary custody for another six months because Mother had been

attending intensive parenting classes, but had not had the opportunity to work directly with D.T.

in the classes.

        {¶7}      For the next six months, Mother was able to work with D.T. in the intensive

parenting classes. She worked with the instructor during the first hour of each class. D.T. was

brought in for the second hour of each class so Mother could attempt to implement what she had
                                                3


learned. Throughout the next several months, the instructor continued to have concern about

Mother’s ability to retain and implement the parenting skills that she had learned. Even with

prompting by the instructor, Mother typically was not able to implement the parenting skills that

she had been taught. For example, during one exercise, the instructor taught Mother how to

administer a liquid medication to D.T. using a medication dropper and water in a labeled

medication bottle. When Mother attempted to give the correct dosage of water to D.T., she was

unable to properly administer it because she did not understand the label directions or how to use

the dropper. The instructor, who worked with Mother on intensive parenting skills for over a

year, ultimately concluded that Mother lacked the ability to care for D.T. In addition to Mother’s

inability to understand and implement basic parenting skills, the instructor was also concerned

that Mother’s interaction with D.T. was minimal and was affected by her unstable moods.

       {¶8}    During the second extension period, Mother participated in counseling and

medication management, but did not do so on a consistent basis. She told her case manager that

she did not want mental health treatment and that she came to the center only because CSB

required her to. Although the center recommended that Mother attend counseling sessions twice

a month, she saw her counselor only four times over a period of approximately five months. She

made little progress during those sessions as she had only begun to develop treatment goals.

Mother was eventually terminated from the program due to her lack of participation. After

having treatment services available to her for nearly two years, Mother still did not have her

mood swings under control.

       {¶9}    CSB was further concerned that D.T. had been living outside of Mother’s custody

for his entire life and did not seem to have developed any bond with her. During monitored

visits, Mother would tend to sit on the couch and not interact with D.T. When she did interact
                                                4


with him, she had very little patience, easily became angry, and would often be too forceful or

aggressive with him. One visitation specialist characterized Mother’s aggression with D.T. as

inappropriate and “borderline abusive” because it was apparent that D.T. was emotionally

affected by it. Mother was not receptive to any suggestions of the visitation specialist, however,

who observed that Mother’s interaction with D.T. did not improve during the pendency of this

case.

        {¶10} D.T. was quiet and timid around Mother because, in the opinion of those who

observed their visits, he never knew what type of reaction he would receive from her. D.T. did

not go to Mother for help or comfort and witnesses never saw any hugs, kisses, or other affection

between the two. In fact, as he grew older, D.T. became more distant from Mother.

        {¶11} On the other hand, D.T. was an outgoing and happy child when he was in the

foster home, where he had lived for most of his life. He showed affection and had developed a

bond with his foster family and was comfortable in that home.

        {¶12} Consequently, on September 1, 2011, CSB again moved for permanent custody of

D.T., alleging that he had been in the temporary custody of CSB for more than 12 of the prior 22

months, that he could not be placed with either parent within a reasonable time or should not be

placed with them, and that permanent custody was in his best interest. By the time of the

permanent custody hearing, D.T. was 28 months old and had spent all but two days of his life

outside Mother’s custody. Following a hearing, the trial court terminated Mother’s parental

rights and placed D.T. in the permanent custody of CSB. Mother appeals and raises one

assignment of error.
                                                 5


                                                 II

                                       Assignment of Error

       THE JUVENILE COURT COMMITTED PLAIN ERROR BY PROCEEDING
       TO TRIAL ON THE ISSUE OF PERMANENT CUSTODY WITHOUT
       PROPER SERVICE OR NOTICE TO MOTHER.

       {¶13} Mother does not dispute that the evidence supported the trial court’s permanent

custody decision because D.T. had been in the temporary custody of CSB for more than 12 of the

prior 22 months and permanent custody was in his best interest. Mother’s sole assignment of

error is that the trial court erred by proceeding with the permanent custody hearing because she

had not been properly served with the permanent custody motion.

       {¶14} Mother concedes that she is raising this issue for the first time on appeal. When

the issue of service of the permanent custody motion was addressed at the commencement of the

hearing, counsel for CSB informed the trial court that Mother had been personally served with

the motion on September 9, 2011, when she appeared in court for a review hearing, and that her

counsel had consented to service in that manner. Mother did not raise any objection to CSB’s

representation that she had accepted personal service of the motion. The trial court therefore

found that service had been perfected upon Mother.

       {¶15} Because Mother did not dispute that the motion had been properly served on her,

she has forfeited all but plain error. In re Mi.H., 9th Dist. Nos. 26077 & 26096, 2011-Ohio-

6736, ¶ 13, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23-24. Although she

purports to argue plain error, she has failed to demonstrate that any defect in service affected

“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.
                                                  6


        {¶16} Mother has not even argued how she was prejudiced by any alleged defect in

service. Instead, she simply asserts that the record fails to properly document that the permanent

custody motion was served on her in strict compliance with R.C. 2151.29 and Juv.R. 16.

Although Mother suggests that any failure to comply with the rules of service constitutes

reversible error, a defect in the service of a permanent custody motion typically constitutes

reversible error because it had due process implications on the parent because the parent received

untimely, insufficient, or no notice of the hearing. See, e.g., In re Thompkins, 115 Ohio St.3d

409, 2007-Ohio-5238. All of the cases cited by Mother involve parents who did not appear at

the permanent custody hearing and claimed on appeal that they had not been given proper notice

and, therefore, were deprived of their right to participate in the hearing. E.g., id.; In re S.S., 9th

Dist. No. 10CA0010, 2010-Ohio-6374; In re Keith Lee P., 6th Dist. No. L-03-1266, 2004-Ohio-

1976.

        {¶17} In Thompkins, the Ohio Supreme Court emphasized that the purpose of requiring

service of a permanent custody motion on parents is to afford them due process prior to

terminating their fundamental liberty interest in the care and custody of their child. 115 Ohio

St.3d 409, at ¶ 10-14. Due process requires notice, which is reasonably calculated to apprise a

parent of the permanent custody hearing, as well as an opportunity to appear and present

objections at the hearing. Id. at ¶ 13.

        {¶18} In this case, Mother does not dispute that she did, in fact, receive timely notice of

the permanent custody hearing, appeared at the hearing represented by counsel, and had a full

opportunity to defend herself against the motion. Because she has failed to demonstrate that any

alleged defect in service of the motion impacted her right to due process or prejudiced her in any

way, she cannot demonstrate plain error. Mother’s assignment of error is overruled.
                                                 7


                                                III

       {¶19} Mother’s assignment of error is 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.




                                                      BETH WHITMORE
                                                      FOR THE COURT




CARR, J.
CONCURS.
                                                8


DICKINSON, J.
CONCURRING.

       {¶20} I concur in the majority’s judgment.            I would conclude, however, that, by

consenting to service on Mother at the review hearing, her lawyer, on her behalf, waived the

service that would have otherwise been required rather than simply forfeiting the right to assign

error on appeal related to that service. “Whether a particular right is waivable; whether the

defendant must participate personally in the waiver; whether certain procedures are required for

waiver; and whether the defendant’s choice must be particularly informed or voluntary, all

depend on the right at stake.” State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, at

¶ 61 (Dickinson, P.J., concurring) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

Accordingly, I would not engage in a plain error analysis.


APPEARANCES:

MARTHA HOM, Attorney at Law, for Appellant.

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