[Cite as In re B.R., 2013-Ohio-4023.]


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

IN RE: N.R.                                           C.A. Nos.     26834
       B.R.                                                         26869


                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. DN 11 07 0457
                                                                 DN 11 07 0458

                                 DECISION AND JOURNAL ENTRY

Dated: September 18, 2013



        MOORE, Presiding Judge.

        {¶1}     Appellants, Amber S. (“Mother”) and N.R., Sr. (“Father”), appeal from a

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

their parental rights and placed their two minor children in the permanent custody of Summit

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

                                                 I.

        {¶2}     Mother and Father are the natural parents of B.R., born April 26, 2008, and N.R.,

born March 24, 2011. On July 8, 2011, CSB filed complaints, alleging that the children were

neglected primarily because of the parents’ methamphetamine use and concerns about domestic

violence in the home. Following the shelter care hearing, the trial court ordered that the children

could remain in the home, where they had been residing with Mother and the maternal

grandmother. The children were later adjudicated dependent children based on the parents’

admissions that they had drug abuse problems and needed treatment. Upon agreement of the
                                                2


parents, the children were placed in the temporary custody of CSB so the parents would have a

better opportunity to work on the drug treatment goals of the case plan.

        {¶3}    During the pendency of the case, however, the parents did not participate in drug

treatment, but instead continued their involvement in criminal drug activity. By April 2011,

Mother and Father had been arrested and incarcerated for different drug-related offenses and

other criminal charges. Each parent was later convicted and sentenced to a term of incarceration

of at least two years.

        {¶4}    Prior to the birth of N.R., Mother, Father, and B.R. had lived with the paternal

grandmother in Virginia for over a year. Although the paternal grandmother had initially stayed

in Virginia when the parents moved with B.R. to Akron, she later relocated to this area and asked

CSB to place the children in her home. The grandmother had supervised visits with the children

for several months, although she did not consistently attend the visits. Because grandmother

informed CSB’s kinship assessor that she had been overusing prescribed pain medication and

needed treatment, CSB did not place the children in her home and would not allow her to visit

the children until she obtained treatment.

        {¶5}    On June 8, 2012, CSB moved for permanent custody of both children. Mother

moved for an alternate disposition of legal custody to the paternal grandmother and Father

supported that motion. Following a hearing on both motions, the trial court denied the motion

for legal custody to the grandmother because she still had not taken steps to address her admitted

abuse of prescription pain medication.       The trial court also expressed concern that the

grandmother lacked the commitment and financial resources to provide a permanent home for

the children. Consequently, the trial court terminated the parents’ parental rights and placed the

children in the permanent custody of CSB. Mother and Father separately appealed and each
                                                  3


raised two assignments of error.       Their appeals were later consolidated.      This Court will

consolidate two of their assigned errors to facilitate our review.

                                                 II.

                           FATHER’S ASSIGNMENT OF ERROR I

       APPELLANT WAS DENIED DUE PROCESS OF LAW AND HIS RIGHT TO
       BE PRESENT FOR THE HEARINGS WHEN THE FIRST DAY OF
       TESTIMONY WAS CONDUCTED WITHOUT HIS BEING PRESENT, IN
       VIOLATION OF SECTION 2151.414 OF THE OHIO REVISED CODE, THE
       FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
       CONSTITUTION, AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO
       CONSTITUTION.

       {¶6}    Father’s first assignment of error is that he was denied his right to due process

because he was incarcerated and was not transported to court to attend the first day of the

hearing. Father asks this Court to follow the due process reasoning of the Eleventh District

Court of Appeals in In re Sheffey, 167 Ohio App.3d 141, 2006-Ohio-619 (11th Dist.). Aside

from the analysis of that case hinging on distinguishable facts, this Court need not look to the

decision of another jurisdiction to guide the analysis on this issue, as there is ample authority

from this appellate district. See, e.g., In re C.M., 9th Dist. Summit Nos. 23606, 23608 and

23629, 2007-Ohio-3999, ¶ 24. This Court has repeatedly held that the trial court does not violate

the due process rights of an incarcerated parent by failing to order that he or she be transported to

the permanent custody hearing so long as “the parent is represented by counsel at the hearing, a

full record of the proceedings is made, and any testimony that the parent may wish to present

could be offered by way of deposition.” Id., citing In re Frasher, 9th Dist. Summit No. 18100,

1997 WL 537666, *2 (Aug. 20, 1997), In re Smith, 9th Dist. Summit No. 16778, 1995 WL

89455, *2 (Mar. 1, 1995), and In re Harding, 9th Dist. Summit No. 16552, 1995 WL 28993, *3

(Jan. 25, 1995).
                                                  4


       {¶7}    The record in this case includes a full transcript of the permanent custody hearing,

which demonstrates that Father was represented by counsel throughout the hearing. Although

Father did not attend the first day of the hearing, his counsel fully participated by giving an

opening statement and cross-examining CSB’s witnesses.            Through the opening statement,

counsel explained to the court that he had discussed the case with Father and that Father

understood that he could not provide a home for the children at that time. He further conveyed

Father’s wishes that the court keep his family together by placing the children in the legal

custody of the paternal grandmother. Counsel further asserted the reasons why Father believed

that the grandmother was a suitable caregiver for the children.

       {¶8}    The transcript further reveals that Father was transported to court to attend the

second day of the hearing and was able to present his testimony to the court in person. In fact, it

was not Father’s counsel but the trial judge who raised this issue prior to the commencement of

the hearing. The judge explained on the record:

       [T]he court did not receive a request to transport father until it was too late to do
       so. If father would like to be here for that hearing, we will also make
       arrangements for him to be transported for that second [day of] hearing so that he
       can provide any testimony or information that he has.

Father’s counsel did not request a continuance of the first day of the hearing, nor did he raise any

objection to the manner in which the trial judge planned to afford Father an opportunity to

participate in the hearing.

       {¶9}    The record further reveals that Father was transported to court and attended the

second day of the hearing. He made a narrative statement to the court that he loved his children,

admitted that he could not provide them with a home, and expressed to the court that he thought

legal custody to the paternal grandmother was in the children’s best interests. Consequently,

Father has failed to demonstrate that his due process rights were violated because he was not able
                                                5


to attend the first day of the permanent custody hearing.       His first assignment of error is

overruled.

                         FATHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT GRANTED [CSB’S] MOTION FOR
       PERMANENT CUSTODY WHEN THE DECISION WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                         MOTHER’S ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DECISION TO GRANT [CSB’S] MOTION FOR
       PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.

       {¶10} Father’s second assignment of error and Mother’s first assignment of error are

that the trial court’s permanent custody decision was against the manifest weight of the evidence.

Before a juvenile court may terminate parental rights and award to a proper moving agency

permanent custody of children, it must find clear and convincing evidence of both prongs of the

permanent custody test that: (1) the children are abandoned, orphaned, have been in the

temporary custody of the agency for at least 12 months of the prior 22 months, or that the

children 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) the grant of permanent

custody to the agency is in the best interests 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).

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

satisfied because both parents were incarcerated, serving terms of at least two years, and

necessarily would not be available to care for the children within the next 18 months. See R.C.

2151.414(E)(12). Neither parent contests that finding. Instead, they challenge the trial court’s
                                                    6


best interest finding and argue that legal custody to the paternal grandmother, not permanent

custody to CSB, was in the best interests of the children.

          {¶12} Because the trial court’s decision to deny the motion for legal custody to the

paternal grandmother was also based on the best interest of the children, “this Court typically

conducts a single ‘best interest’ review of the trial court’s decision to place the child[ren] in the

permanent custody of the agency rather than in the legal custody to a relative.” In re I.A., 9th

Dist. Summit No. 26642, 2013-Ohio-360, ¶ 10. If permanent custody is in the children’s best

interest, legal custody to the grandmother necessarily is not. Id. “‘Consequently, this Court will

review the factors set forth in R.C. 2151.414(D) in reviewing the [best interest] decision of the

trial court * * *.’” Id., quoting In re T-G.M., 9th Dist. Summit No. 25858, 2011-Ohio-3940, ¶

13.

          {¶13} When determining whether a grant of permanent custody is in the children’s best

interests, the juvenile court must consider the following factors:

          The interaction and interrelationship of the child with the child’s parents, siblings,
          relatives, foster caregivers and out-of-home providers, and any other person who
          may significantly affect the child;

          The wishes of the child, as expressed directly by the child or through the child’s
          guardian ad litem, with due regard for the maturity of the child;

          The custodial history of the child, including whether the child has been in the
          temporary custody of one or more public children services agencies or private
          child placing agencies for twelve or more months of a consecutive twenty-two-
          month period * * *;

          The child’s need for a legally secure permanent placement and whether that type
          of placement can be achieved without a grant of permanent custody to the agency
          * * *.

R.C. 2151.414(D)(1)(a)-(d).1



1
    The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case.
                                                 7


        {¶14} The parents do not dispute that neither of them was able to provide a suitable

home for their children at the time of the hearing. They ask that this Court analyze the best

interest factors as they pertain to placing the children with the paternal grandmother rather than

terminating their parental rights.

        {¶15} The children’s interaction and interrelationship with the paternal grandmother was

limited to supervised visitation that began on a monthly basis and was later offered more

frequently after the parents were incarcerated. The trial court heard conflicting evidence about

how many visits the grandmother actually missed and the specific reason that her visits were

later terminated. Nonetheless, it was not disputed that, during the fifteen months that this case

was pending, the grandmother missed several scheduled visits with the children and actually

attended a total of only five visits.

        {¶16} It was also not disputed that, after learning about the grandmother’s admitted

overuse of prescription pain medication, CSB required her to engage in regular drug treatment

before her visits with the children would be reinstated. Because the grandmother did not obtain

any treatment during this case, her visits did not resume. At the time of the hearing, she had not

seen the children for more than four months.

        {¶17} CSB also expressed concern that the grandmother appeared to be bonded to B.R.,

but was very detached from N.R. The grandmother admitted that she had not developed a

relationship with N.R. before this case began and had seen him only five times during this case.

The caseworker had observed some of those visits and testified that the grandmother would

interact with B.R. but tended to leave N.R. sitting in his car seat. Even her relationship with B.R.

had suffered by her failure to visit on a consistent basis. B.R.’s counselor testified that B.R. had

a lot of anxiety toward the grandmother and would become very upset when the grandmother
                                                 8


missed visits. After the grandmother’s visits were terminated, B.R. told her counselor that she

did not want to see her grandmother anymore.

       {¶18} The children were bonded to each other and were doing very well in the foster

home. B.R.’s counselor testified that the routine and structure of the foster home had helped to

relieve B.R.’s anxiety. The foster parents were not interested in adopting the children, however.

       {¶19} Because the children were both under the age of five at the time of the hearing,

the guardian ad litem spoke on their behalf. She testified permanent custody was in the best

interest of both children. The guardian did not believe that the grandmother could provide a

suitable home for the children at that time because she had not addressed her substance abuse

problem. B.R. had also told the guardian that she wanted to remain with the foster parents.

       {¶20} Although B.R. had spent the first two and one-half years of her life living with her

parents in Virginia in the home of the paternal grandmother, the grandmother admitted that she

was also overusing prescription medication during that time and that Mother was the primary

caretaker of B.R. N.R. had never lived with the grandmother.

       {¶21} By the time of the permanent custody hearing, the children had been living

outside their parents’ custody for over a year. N.R. had spent almost all of his short life living in

temporary placements. Both children were in need of a legally secure permanent placement and

their parents were unable to provide a home for them any time in the foreseeable future.

       {¶22} The parents argue that the paternal grandmother was ready and willing to provide

the children with a stable, permanent home. The grandmother testified, however, that she was

prepared to care for the children until the age of majority “if I have to” and admitted that she

would need help raising them. She testified that she assumed Mother and Father would help her

when they were released from prison.
                                                 9


       {¶23} Although Father and Mother assert that the grandmother did not have a substance

abuse problem because her medications had been legally prescribed, the grandmother admitted to

the CSB kinship assessor that she had been taking too much pain medication and that she wanted

to get clean and sober so she could get custody of the children. She told the assessor that she had

been taking as many as 6 oxycodone pills per day. Rather than entering treatment to become

drug-free, she had recently switched to Percocet for her pain.

       {¶24} At the hearing, the grandmother testified that she thought she should have a “clear

mind” if she was going to care for the children. Although she recognized that she had a need to

get ongoing treatment, she had not yet started a treatment plan. She explained that she wanted to

see a psychiatrist who “specializes in addiction” and, although she had scheduled an

appointment, she had not yet seen that professional. Although the grandmother had repeatedly

assured CSB that she would comply with the case plan so that she could obtain custody of the

children, she had failed to engage in the recommended drug treatment and had also refused to

obtain a mental health assessment because she did not believe that she needed one.

       {¶25} The grandmother further testified that she had been unable to comply with CSB’s

requests that she undergo drug testing and treatment because she had “a lot on [her] plate right

now” because she had been dealing with the impending death of one of her parents and health

issues of the other. She failed to explain how she would be able to manage the additional

obligation of caring for two small children, however. Additionally, the grandmother’s only

source of income was Social Security Disability, which barely covered her current monthly

expenses. Consequently, the trial court reasonably concluded that the grandmother was not able

to provide the children with a suitable home at that time.
                                                10


       {¶26} Because the children’s parents were unable to provide them with a stable home

and CSB had found no suitable relatives who were able to do so, the trial court reasonably

concluded that a legally secure permanent placement would only be achieved by placing the

children in the permanent custody of CSB. Because there was ample evidence before the trial

court to support its finding that permanent custody to CSB and not legal custody to the paternal

grandmother was in the best interests of B.R. and N.R, Father’s second assignment of error and

Mother’s first assignment of error are overruled.

                         MOTHER’S ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING [CSB]
       TO RECALL THE ONGOING SOCIAL WORKER SO THAT HE COULD
       CHANGE HIS TESTIMONY.

       {¶27} Mother’s second assignment of error is that the trial court erred in allowing CSB

to recall the social worker because he changed some of the testimony that he gave during CSB’s

case in chief. Specifically, on rebuttal, the caseworker corrected his testimony about how many

visits the grandmother had missed with the children before her visits were terminated. He

explained that the grandmother had actually missed seven visits before her visitation was

terminated, several more than he had indicated in his original testimony. He also explained in

more detail when and why the grandmother’s visits were terminated.

       {¶28} Mother argues that the caseworker’s corrected testimony was not proper rebuttal

evidence and should not have been allowed. She focuses her argument solely on whether the

admission of this testimony was proper, but fails to argue how she was prejudiced in any way.

To establish reversible error, Mother must demonstrate not only that the trial court erred by

admitting this testimony, but also that she suffered prejudice as a result. Lowry v. Lowry, 48

Ohio App.3d 184, 190 (4th Dist.1988), citing Gries Sports Ents., Inc. v. Cleveland Browns
                                               11


Football Co., Inc., 26 Ohio St.3d 15, 28 (1986). “A prejudicial error is defined as one which

affects or presumptively affects the final results of the trial.” Miller v. Miller, 5th Dist.

Coshocton No. 06 CA 3, 2006-Ohio-7019, ¶ 12.

       {¶29} There is nothing in the record to suggest that the caseworker’s corrected

testimony influenced the permanent custody decision. As noted already, the trial court heard

conflicting evidence about the number of visits that the grandmother actually missed. It made no

factual finding on that issue, however, and its best interest findings made no reference to the

number of visits the grandmother missed or the caseworker’s rebuttal testimony. In fact, the trial

court did not mention that the grandmother had missed any visits before her visits were

terminated.

       {¶30} Moreover, as explained above, it was not disputed that the grandmother had

visited with the children only a handful of times during this case and had not seen them for

several months before the hearing. More significantly, in finding that legal custody to the

grandmother was not in the children’s best interests, the trial court focused on her failure to

address her admitted prescription drug problem, which prevented her from providing the children

with a suitable home. Because Mother fails to demonstrate that she was prejudiced by the

caseworker’s rebuttal testimony, her second assignment of error is overruled.

                                               III.

       {¶31} The assignments of error raised by Father and Mother are overruled.              The

judgment of the Summit County Court of Common Pleas, Juvenile Division, is affirmed.

                                                                                Judgment affirmed.
                                                12


       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.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶32} I respectfully dissent. Although this Court has held that due process does not

compel a parent’s attendance at the permanent custody hearing, I do not agree with the reasoning

of those decisions. Specifically, by focusing on the civil nature of a juvenile case, those

decisions ignore the constitutional significance of a deprivation of parental rights and essentially

equate the loss of parental rights with a loss of property. See In re Harding, 9th Dist. Summit

No. 16552, 1995 WL 28993, *3 (Jan. 25, 1995).
                                                13


       {¶33} Although juvenile cases are civil in nature, this Court has often emphasized that

the serious deprivation of rights at issue in these cases requires that parents be afforded greater

procedural protections than in a typical civil case. Because I believe that the loss of parental

rights is more akin to a loss of life or liberty than to a loss of property, I am more persuaded by

the due process analysis of the Eleventh District Court of Appeals in In re Sheffey, 167 Ohio

App.3d 141, 2006-Ohio-619 (11th Dist.).

       {¶34} Father should have had the opportunity to participate in the entire permanent

custody hearing, including the first day during which CSB presented all of its witnesses against

the parents. For that reason, I would sustain Father’s first assignment of error and reverse and

remand the permanent custody judgment for a new hearing.


APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

GREGORY A. PRICE, Attorney at Law, for Appellant.

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