[Cite as In re G.L.S., 2018-Ohio-1606.]


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

IN RE: G.L.S.                                         C.A. Nos.    28874
                                                                   28893



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN 16-09-000854

                                 DECISION AND JOURNAL ENTRY

Dated: April 25, 2018



        HENSAL, Judge.

        {¶1}     Appellants, T.F. (“Mother”) and J.S. (“Father”), appeal from a judgment of the

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

and placed their minor child in the permanent custody of Summit County Children Services

Board (“CSB”). This Court affirms.

                                                 I.

        {¶2}     Mother and Father are the biological parents of G.L.S., born September 29, 2016.

The day that G.L.S. was born, CSB filed a complaint to allege that she was a dependent child

because Mother and Father had a history with CSB pertaining to siblings of this child, which

resulted in the involuntary termination of their parental rights. G.L.S. was later adjudicated

dependent and placed in the temporary custody of CSB.

        {¶3}     The case involving the older siblings of G.L.S. began during September 2014.

CSB opened an involuntary case with Mother’s two oldest children, who are not Father’s
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biological children. At that time, Mother was also pregnant with Father’s biological child, K.S.

Mother’s two children were removed from her custody because the younger child, then less than

two years old, had sustained multiple injuries and bruises on the head, face, and back that were

consistent with abuse. Father was later convicted of endangering children and felony domestic

violence for causing the child’s injuries.

       {¶4}    Mother’s injured child was adjudicated abused, her older child was adjudicated

dependent, and both were placed in the temporary custody of CSB. Shortly after birth, K.S. was

removed from the custody of Mother and Father, adjudicated dependent, and placed in the

temporary custody of CSB.

       {¶5}    Ultimately, the three older siblings of G.L.S. were placed in the permanent

custody of CSB. Among other reasons, the trial court found that neither parent had substantially

remedied their mental health problems or other conditions that caused the children to remain

placed outside their custody.     R.C. 2151.414(E)(1).   The trial court’s decision terminating

parental rights to the older siblings was affirmed on appeal to this Court. In re C.F., 9th Dist.

Summit No. 28358, 2017-Ohio-375.

       {¶6}    In this case, the trial court placed G.L.S. in the temporary custody of CSB and

adopted the case plan on December 13, 2016. CSB was concerned that Father could not control

his violent temper and that Mother refused to recognize the risk that he posed to the child. In

addition to demonstrating an ability to provide for the basic needs of G.L.S., the case plan

required both parents to obtain mental health and substance abuse assessments and follow all

treatment recommendations.

       {¶7}    Shortly after the trial court adopted the case plan, CSB moved to suspend Father’s

visitation because he had become angry and threatened to harm CSB staff members prior to a
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visit, and had to be escorted from the visitation center by the police. The trial court issued an ex

parte order to suspend Father’s visitation immediately. The trial court scheduled a hearing on the

issue, but a hearing was not held. According to the undisputed testimony of the caseworker,

however, he told father after the first permanent custody hearing that his visits would be

reinstated if he addressed his anger through counseling, but Father did not attend counseling.

          {¶8}   On February 9, 2017, CSB filed a motion for permanent custody of G.L.S.

because, among other reasons, neither parent had been complying with the reunification

requirements of the case plan. R.C. 2151.414(E)(1). That same day, CSB separately moved for

an order to excuse it from making reasonable efforts to reunify G.L.S. with her parents. Revised

Code Section 2151.419(A)(2)(e) provides that the trial court “shall make a determination that the

agency is not required to make reasonable efforts to prevent the removal of the child from the

child’s home, eliminate the continued removal of the child from the child’s home, and return the

child to the child’s home” if “[t]he parent from whom the child was removed has had parental

rights involuntarily terminated with respect to a sibling of the child[.]” The trial court scheduled

a permanent custody hearing and, although it also scheduled a separate hearing on the agency’s

motion for a reasonable efforts bypass, no separate hearing was held on the reasonable efforts

bypass.

          {¶9}   The hearing on the first permanent custody motion was held during June 2017.

CSB presented evidence that the parents had failed to comply with the reunification requirements

of the case plan and also about the prior involuntary termination of parental rights pertaining to

the older siblings of G.L.S. The parents did not dispute the prior termination of their parental

rights. Instead, they focused their defense to the permanent custody motion on whether the

agency had given them enough time to work the case plan, as CSB had moved for permanent
                                                4


custody only two months after the case plan was adopted as an order of the court. At the end of

the hearing, CSB asked the trial court to grant permanent custody and to grant its motion for a

reasonable efforts bypass. Mother’s counsel argued in opposition to both motions.

       {¶10} Following the first permanent custody hearing, the trial court denied CSB’s

motion, emphasizing that the parents had not had “sufficient time to work the case plan and seek

reunification” with G.L.S. The trial court further “admonished [the parents] of the importance of

their compliance with the case plan as they have involuntarily lost custody of other children.”

Later in the order, however, the trial court stated that it granted CSB’s motion for a reasonable

efforts bypass.1

       {¶11} On July 21, 2017, CSB again moved for permanent custody of G.L.S. Following

a hearing held during October 2017, the trial court terminated parental rights and placed G.L.S.

in the permanent custody of CSB. The parents separately appealed and their appeals were

consolidated for purposes of argument and decision. Each raises three assignments of error,

which will be consolidated and rearranged for ease of review.

                                                II.

                          FATHER’S ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT SUSPENDED FATHER’S
       VISITATION WITH THE CHILD WITHOUT CONDUCTING A HEARING
       ON THE MATTER, IN VIOLATION OF THE FIFTH AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION [AND]
       ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION.




       1
          The portion of the order that “granted” a reasonable efforts bypass was inconsistent with
the trial court’s denial of permanent custody and emphasis on the importance of reasonable
reunification services in this case. Moreover, the agency continued to provide case plan services
to the parents after the trial court issued the order.
                                                5


                         MOTHER’S ASSIGNMENT OF ERROR I

       THE TRIAL COURT VIOLATED R.C. 2151.419 AND MOTHER’S RIGHTS
       TO DUE PROCESS WHEN IT ISSUED A REASONABLE EFFORTS BYPASS
       WITHOUT NOTICE AS TO WHEN IT WOULD BE CONSIDERED,
       WITHOUT GIVING MOTHER AN OPPORTUNITY TO PRESENT A
       DEFENSE, AND WITHOUT ISSUING WRITTEN FINDINGS OF FACT
       SETTING FORTH ITS REASONS FOR ITS DETERMINATION.

                         FATHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT VIOLATED R.C. 2151.419 AND FATHER’S DUE
       PROCESS RIGHTS UNDER THE OHIO AND UNITED STATES
       CONSTITUTIONS WHEN IT ISSUED A REASONABLE EFFORTS BYPASS
       WITHOUT NOTICE AS TO WHEN THE HEARING WOULD BE
       [CONSIDERED], WITHOUT GIVING FATHER AN OPPORTUNITY TO
       PRESENT A [DEFENSE], AND WITHOUT [ISSUING] WRITTEN FINDINGS
       OF FACT AND CONCLUSIONS OF LAW SETTING FORTH ITS
       REASONING FOR THE DETERMINATION.

       {¶12} This Court will address these assigned errors together because the parents failed

to preserve these issues for appellate review. The parents argue that they were deprived of due

process when the trial court issued two orders that predated the final permanent custody hearing:

an order suspending Father’s visitation with G.L.S. and the order granting CSB a reasonable

efforts bypass. Father and Mother failed to raise these arguments before or during the final

permanent custody hearing and, therefore, have forfeited all but plain error. In re R.P., 9th Dist.

Summit No. 28097, 2017-Ohio-276, ¶ 7. Neither parent has developed a plain error argument on

appeal. See id. In fact, they have failed to demonstrate prejudice because they do not dispute

that the suspension of Father’s visits and the reasonable efforts bypass were warranted by the

facts of this case. Although Mother suggested otherwise at oral argument, a prior termination of

parental rights conclusively establishes grounds for a reasonable efforts bypass and Revised

Code Section 2151.419(A)(2)(e) provides that the trial court “shall” excuse the agency from

making reasonable efforts.
                                               6


       {¶13} Moreover, even if the trial court’s order “granted” a reasonable efforts bypass,

CSB continued to provide the parents with reunification services and the agency based its second

motion, in part, on Section 2151.414(E)(1), which required clear and convincing evidence that

the parents had failed to substantially remedy the conditions that had caused G.L.S. to remain

placed outside their custody, “notwithstanding reasonable case planning and diligent efforts by

the agency to assist the parents[.]” At the second permanent custody hearing, CSB presented

evidence about the parents’ lack of case plan compliance and the parents again argued that they

had not been given enough time to work on the case plan. Because the parents have failed to

demonstrate plain error, Father’s first and second and Mother’s first assignments of error are

overruled.

                        MOTHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       ALLOWED [CSB] TO PRESENT EVIDENCE THAT WAS SUBSEQUENT TO
       THE DATE IT FILED FOR PERMANENT CUSTODY.

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

error by admitting evidence about facts and circumstances that arose after CSB moved for

permanent custody. She relies on established case law that the agency must allege permanent

custody grounds that exist at the time it files its motion. See In re C.W., 104 Ohio St.3d 163,

2004-Ohio-6411, ¶ 24, quoting In re K.G., 9th Dist. Wayne Nos. 03CA0066, 03CA0067,

03CA0068, 2004-Ohio-1421, ¶ 13. This holding arose within the context of the “12 of 22”

ground for permanent custody. See id. at ¶ 19. The “12 of 22” ground created a presumption of

parental unfitness based on the passage of time that a child spends in temporary custody, so the

legislature must have intended that parents be given a full 12 months to work toward

reunification. Id. at ¶ 22. This Court recognized that permanent custody hearings sometimes are
                                                 7


not held until months after the permanent custody motion is filed, and emphasized that the

agency should not be permitted to benefit from the delay at the expense of the family having a

sufficient opportunity to work toward reunification. In re K.G. at ¶ 23.

       {¶15} In this case, CSB did not allege the “12 of 22” ground, but alleged other factual

grounds under the first prong of the permanent custody test, including that the parental rights of

Mother and Father had been involuntarily terminated as to an older sibling or siblings of G.L.S.

R.C. 2151.414(E)(11). No one disputes that those grounds existed at the time CSB moved for

permanent custody and that the trial court did not consider any facts that occurred after the

motion was filed to make that determination.

       {¶16} In determining the child’s best interest, the trial court did consider some evidence

about facts and circumstances that occurred after CSB moved for permanent custody. Unlike

factual first-prong permanent custody grounds that can be established at a finite point in time, the

child’s best interest is a fluid concept, as it involves the child’s continually-changing need for

appropriate care. See In re J.A., 107 A.3d 799, 812 (Pa.Super.2015). In this case, CSB filed its

motion for permanent custody several months before the final hearing was ultimately held.

Mother cites no authority to support her positon that the trial court was precluded from

considering facts and circumstances pertaining to the child’s best interest that occurred during

that several-month period. In fact, this Court has affirmed many permanent custody decisions

that considered post-motion facts and circumstances to determine the child’s best interest at the

time of the hearing. See, e.g., In re S.A.-C., 9th Dist. Summit No. 28704, 2017-Ohio-9297; In re

S.M., 9th Dist. Wayne Nos. 16AP0045, 16AP0046, 16AP0047, 16AP0048, 16AP0049,

16AP0050, 2016-Ohio-7816; In re L.P., 9th Dist. Summit No. 27792, 2015-Ohio-4164; In re

A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918. Because Mother has failed to demonstrate
                                                 8


that the trial court erred in considering any of the evidence presented at the hearing, her second

assignment of error is overruled.

                         MOTHER’S ASSIGNMENT OF ERROR III

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

                         FATHER’S ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT TERMINATED FATHER’S
       PARENTAL RIGHTS AS THE [JUDGMENT] WAS NOT SUPPORTED BY
       CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶17} The parents’ remaining assignments of error challenge the merits of the trial

court’s permanent custody decision. 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 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).

       {¶18} The trial court found that CSB had satisfied the first prong of the permanent

custody test for several alternative reasons, including that the parents had failed to substantially

remedy the conditions that caused G.L.S. to be placed outside the home and that they had
                                                 9


previously involuntarily lost their parental rights to older siblings. See R.C. 2151.414(E)(1) and

(E)(11). As long as one of those grounds was properly supported by clear and convincing

evidence, the parents suffered no prejudice from any error in the trial court’s alternative finding

under Revised Code Section 2151.414(E). See, e.g., In re S.C., 9th Dist. Summit No. 27676,

2015-Ohio-2623, ¶ 30; In re R.H., 9th Dist. Lorain Nos. 11CA010002, 11CA010003, 2011–

Ohio–6749, ¶ 13–14. Mother and Father dispute whether CSB had established grounds under

Section 2151.414(E)(1) but they do not dispute that their parental rights had been involuntarily

terminated as to an older sibling or siblings of G.L.S. R.C. 2151.414(E)(11).

       {¶19} As originally enacted, a prior termination of parental rights to a sibling of the

child conclusively established the parent’s unfitness under the first prong of the permanent

custody test. See former R.C. 2151.414. As amended effective January 9, 2009, however,

Section 2151.414(E)(11) allows a parent to rebut the presumption that they are unfit by

presenting “clear and convincing evidence to prove that, notwithstanding the prior termination,

[they] can provide a legally secure permanent placement and adequate care for the health,

welfare, and safety of the child.” Notably, neither parent in this case presented any evidence that

they could provide a legally secure placement for G.L.S.

       {¶20} The parents challenge the trial court’s best interest determination, but they focus

their arguments almost exclusively on whether they were given sufficient time to work on the

case plan. Although the parents’ case plan compliance was relevant to the children’s best

interest, it was not dispositive. See In re G.A., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-

8561, ¶ 13. When determining the child’s best interest under 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
                                                10


life, and whether any of the factors set forth in Section 2151.414(E)(7) to (11) apply to the facts

of the case. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.

       {¶21} Mother and Father do not dispute any of the trial court’s factual findings on the

best interest factors. Since the child’s birth, their interaction with G.L.S. had been limited to

closely-supervised visitation because they had not complied with the case plan. Father’s visits

were suspended shortly after the case plan was adopted, but the caseworker had informed him

after the first permanent custody hearing that visits would be reinstated after he began court-

ordered counseling. At the time of the hearing, seven months after the suspension of his visits,

Father had not yet started counseling. Mother had the opportunity to meet regularly with her

infant child, yet she missed more visits than she attended.

       {¶22} G.L.S. was placed in a foster home with two of her older siblings shortly after her

birth. All of her needs were being met and she was flourishing in the only home that she had

ever known. G.L.S. had become closely bonded to the foster parents and her older siblings. By

the time of the hearing, the foster parents had adopted the older siblings and were interested in

adopting G.L.S.

       {¶23} G.L.S. was too young to express her wishes, so the guardian ad litem spoke on her

behalf. She opined that permanent custody was in the child’s best interest because neither parent

had seriously attempted to remedy their substance abuse or mental health problems or to develop

a relationship with G.L.S.

       {¶24} By the time of the final hearing, G.L.S. had spent more than one year in the home

of her foster parents. During that time, her parents had done little to address their parenting

problems. CSB had been unable to find any suitable relatives to provide the child with a stable

home and the parents were not prepared to do so at that time or within the foreseeable future.
                                                11


       {¶25} The trial court was also required to consider that Mother’s parental rights had

been involuntarily terminated to three older siblings of G.L.S. and Father’s parental rights were

involuntarily terminated as to the one sibling who was his biological child.                R.C.

2151.414(D)(1)(e); R.C 2151.414(E)(11). The trial court heard considerable evidence that the

parents continued to suffer from the same parenting problems that caused them to lose custody of

those children. As noted already, Revised Code Section 2151.414(E)(11) provided the parents

with an opportunity to rebut this statutory presumption of parental unfitness, but neither parent

presented any evidence at the hearing to defend against the agency’s motion.

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

judgment was not supported by clear and convincing evidence. Father’s and Mother’s third

assignments of error are overruled.

                                                III.

       {¶27} 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
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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.
CALLAHAN, J.
CONCUR.


APPEARANCES:

ADAM VANHO, Attorney at Law, for Appellant.

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

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

HOLLY FARAH, Guardian ad Litem.
