In re P.O.
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Brittany Ponn, mother of minor childrеn P.O. (dob 3/31/09) and K.O. (5/14/10), appeals from the judgment of the Geauga County Court of Common Pleas, Juvenile Division, terminating her parental rights. We affirm in part, reverse in part, and remand the matter for further proceedings.
{¶3} Prior to opening statements, appellant‘s counsel objected to the hearing going forward. Counsel assertеd appellant was not properly served with notice of the permanent custody hearing and, as a result, the trial court lacked personal jurisdiction over appellant. After reviewing the relevant law, the trial court denied the motion. From the bench, the court stated:
{¶4} The court is satisfied that, first of all, Miss Ponn, we have jurisdiction over Miss Ponn from the initial filing in this case, and the fact that Miss Ponn appeared in this Court on 10/7/13, requesting an attorney who was appointed for her at the expense of the County. 11/14/13, she appeared before this Court. 2/24/14 she appeared before this Court. 5/15/14 she appeared before this Court. 6/2/14 she appeared before this Court. On 8/13/14 she appeared before this Court.
{¶5} She was, in this Court‘s opinion, properly served, both through counsel, and in accordance with Rule and Statute, and that the Court looks at the case law that has been recited In RE: ALW case, can be readily distinguished based on the facts I have just mentioned.
{¶6} Interestingly enough, the Ninth District has actually distinguished its In RE: SS Opinion in a case called In RE: DG, 2012 opinion, two years later, where they pointed out that the Court‘s vacation of the termination of parental rights was not based solely on a lack of compliance with 2159.29 and the manner that service was attempted on a mother. {¶7} However, rather, this Court vacated the permanent custody judgment based upon the unique facts of that case, specifically, that in this case, it did not appear that she had counsel as well as other issues that would render it distinguishable from our case.
{¶8} Last but not least, the Court does not beliеve that a party, and there‘s no question that Miss Ponn has been a party in this case, can and have counsel apparent, can avoid the process simply by avoiding the Court.
{¶9} And there‘s no question that in this case, Miss Ponn has failed to appear. She has failed to cooperate with Jobs and Family Services, failed to communicate with the Guardian ad Litem, in violation of standing orders of this Court, and by the motion filed by counsel for Miss Ponn, has even failed to communicate with her own attorneys.
{¶10} To the extent that Miss Ponn doеs not have notice of these proceedings, the Court did not find that conclusion. But it would be because Miss Ponn has actively and willfully attempted to avoid the Court‘s proceedings in these matters for several months. (Sic throughout)
{¶11} After opening statements, trial commenced. GCJFS first called Patrick Minno to testify. Mr. Minno is a supervisor at Omega Laboratories and testified that appellant tested positive for various drugs on four separate occasions during the pendency of the case.
{¶12} Dr. Alan Shein, the Medical Directоr of Addiction Medicine Services with Summa Health System In-Patient Hospitalization at St. Thomas and Akron City Hospitals, testified that appellant was admitted to a drug detoxification unit at Summa Health System, St. Thomas Hospital in Akron, Ohio on September 22, 2013. Appellant
{¶13} Jennifer Marut, a Dual-Diagnosis Clinician with Ravenwood Mental Health Clinic, testified appellant hаd an appointment with her on December 10, 2013 for a drug and alcohol evaluation as well as a mental health evaluation, pursuant to appellant‘s case plan. The appointment, however, was cancelled for unknown reasons. Ms. Marut tried contacting appellant at several different phone numbers to reschedule and also drafted a letter for the same purpose. Appellant did not return any of Ms. Marut‘s attempted communications.
{¶14} Jodi Miller, the GCJFS social worker assigned to apрellant‘s case, testified that after the children were placed into emergency temporary custody, appellant took initial steps and voluntarily admitted herself to detoxification treatment at Summa. After her detox treatment, Summa scheduled an appointment with Turning Point, a residential drug treatment facility. Appellant did not attend the appointment and advised Ms. Miller she felt residential treatment was unnecessary. Ms. Miller subsequently referred appellant to Ravenwood for drug and alcohol as well as mental health assessments. According to Ms. Miller, appellant failed to follow up with Ravenwood and the facility closed her file in February 2014. Ms. Miller testified she last had contact with appellant in July 2014 and she was unable to locate appellant after that date.
{¶15} With respect to appellant‘s visitation, appellant consistently visited the children between October 2013 and late December 2013; during this timeframe, however, appellant was late for many visits. Although visitation was available and
{¶16} Ms. Miller testified appellant continued to illegally use drugs throughout her involvement in the case; appellant made it difficult and ultimately impossible for Ms. Miller or GCJFS to contact her. And, Ms. Miller testified, even when she was in contact, appellant routinely failed to comply with her casе plans, despite GCJFS’ efforts to assist.
{¶17} Ms. Miller testified appellant was arrested in June 2014 for her alleged involvement in methamphetamine manufacturing. Further, appellant failed to appear for a November 2014 hearing in the criminal matter and, as a result, a warrant for her arrest was issued. Ms. Miller noted that appellant‘s visitation with the children was suspended after her arrest; she, however, never moved the court to reinstate visitation. The criminal matter was still pending at the time of the permanent custody hearing. There wаs no testimony, however, regarding the stage of the pending prosecution.
{¶18} Ms. Miller testified, at the time GCJFS moved for emergency temporary custody, the children were unclean; they did not use utensils to eat; they had speech delays; and were rambunctious as well as, in some cases, hostile, with others. Since their placement in foster care, they have improved significantly and are doing well in school and thriving with the foster family. Ms. Miller testified the children have stability and structure currently and that appellant is unable to provide thеse necessary living conditions.
{¶20} After considering the testimony and other evidence, the trial court granted GCJFS permanent custody. This appeal follows. Appellant assigns three errors, which we shall address out of order. For her second assignment of error, appellant asserts:
{¶21} “The court erred when it overruled appellant‘s objection regarding mother having not been properly served with notice of the permanent custody proceedings to the detriment of the appellant.”
{¶22} Under this assignment of error, appellant initially contends the trial court erred in concluding it had personal jurisdiction over her. We do not agree.
{¶23} Personal jurisdiction may be obtаined by service of process, voluntary appearance, or waiver. Maryhew v. Yova, 11 Ohio St.3d 154, 156 (1984). An objection to personal jurisdiction is waived if a party fails to challenge such jurisdiction at her first appearance in the case. In re A.L.W., 11th Dist. Portage Nos. 2011-P-0050, 2011-P-0051, and 2011-P-0052, 2012-Ohio-1458, ¶37. In this matter, appellant initially appeared in the case on October 7, 2013, seeking appointment of counsel, which the trial court granted. And she does not dispute the trial court‘s finding that, subsequent to that appearance, she appeared before the court five additional times for hearings. At no point did appellant object to the court‘s jurisdiction over her person. By failing to challenge the court‘s jurisdiction over her, she forfeited any such challenge on appeal.
{¶24} Next, appellant contends the trial court erred in concluding she received sufficient notiсe of the permanent custody hearing.
{¶25}
{¶26} Service of summons, notices, and subpoenas, prescribed by
section 2151.28 of the Revised Code , shall be made by delivering a copy to the person summoned, notified, or subpoenaed, or by leaving a copy at the person‘s usual place of residence. If the juvenile judge is satisfied that such service is impracticable, the juvenile judge may order service by registered or certified mail. * * * Whenever it appears by affidavit thаt after reasonable effort the person to be served with summons cannot be found or the person‘s post-office address ascertained, whether the person is within or without a state, the clerk shall publish such summons once in a newspaper of general circulation throughout the county. The summons shall state the substance and the time and place of the hearing, which shall be held at least one week later than the date of the publication. A copy of the summons and the complaint, indictment, or information shall be sent by registered or certified mail to the last known address of the person summoned unless it is shown by affidavit that a reasonable effort has been made, without success, to obtain such address.
{¶27} Mother relies primarily on the Ninth Appellate District‘s decision in In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-6374, in support of her position that the trial court erred in concluding service was sufficient. In S.S., the appellate court vacated a trial court‘s permanent custody judgment because there was nothing in the record indicating the mother had been served with the pеrmanent custody motion under a method that was proper under
{¶28} Here, the record indicates that appellant had not appeared in the proceedings, in any capacity, since November 5, 2014, when she appeared telephonically for a reviеw hearing; and, despite regular efforts via telephone and letter, appellant‘s attorney had been unable to contact her since November 13, 2014. Appellant‘s counsel was served, but was unable to contact appellant.
{¶29} In attempting to complete service on appellant‘s person, the court sent notice to the only address appellant provided. The initial summons was sent by certified mail and was returned unclaimed; service was subsequently sent via regular mail, which was not returned. Although serviсe by regular mail is not specifically contemplated by
{¶30} Moreover, appellant was represented by counsel, who received notice and appeared on appellant‘s behalf at the hearing. And counsel vigorously defended appellant‘s rights, notwithstanding appellant‘s ostensible disinterеst in reunification. Under the circumstances of this case, we hold the measures taken by the trial court to perfect service were sufficient in this matter.
{¶32} Appellant‘s first assignment of error provides:
{¶33} “The trial court erred in granting the motion for permanent custody as such decision was against the manifest weight of the evidence and resulted in a manifest miscarriage of justice.”
{¶34} A parent has a basic civil right to raise his or her child. See, e.g., In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶87. This right, however, is subordinate to the child‘s best interest. Miller v. Miller, 37 Ohio St.3d 71, 75 (1988).
{¶35}
{¶36} (a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as described in division (D)(1) of
section 2151. 413 of the Revised Code , the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child‘s parents within a reasonable time or should not be placed with the child‘s parents.{¶37} (b) The child is abandoned.
{¶38} (c) The child is orphaned, and there are no relativеs of the child who are able to take permanent custody.
{¶39} (d) 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 or 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 and, as described in division (D)(1) of section 2141.413 of the Revised Code , the child was previously in the temporary custody of an equivalent agency in another state.
{¶40} After concluding one of the four factors in
{¶41} (a) 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 mаy significantly affect the child;
{¶42} (b) 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;
{¶43} (c) 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 or the child has been in the temporary custody of one or more public children services agencies оr private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code , the child was previously in the temporary custody of an equivalent agency in another state;{¶44} (d) 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;
{¶45} (e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the рarents and child.
{¶47} In support of its decision, the trial court made the following preliminary findings relating to
{¶48} This court finds that clear and convincing evidence that Mother has engaged in significant and ongoing abuse of drugs. Further, Mother has chosen not to be involved in this case or make any effort to be involved in the case. Mother has made no effort to fulfill the requirements of the case plan or to take the actions necessary to pursue reunification with her children. Because of the actions of Mother, she cannot serve as a custodial parent of the children.
{¶49} In accordance with
R.C. 2151.414 , this Court finds that clear and convincing evidence exists which prevents the children in question from being placed with either parent. Neither parent has made any reasonable effort at case plan compliance, and both parents have demonstrated a lack of commitment to the children by failing toregularly support, visit, or communicate with the children when they are able to do so. {¶50} This clear and convincing evidence leads the Court to conclude that GCJFS has made reasonable efforts to prevent removal of the children from the home throughout the course of the proceedings, but Mоther and Father have not been willing or able to comply with the case plan.”
{¶51} While the record in this matter supports each of the trial court‘s findings, none of these findings, individually or collectively, correspond to any of the statutory findings required by
{¶52} First, appellant does not challenge the trial court‘s omission. And, most importantly, the record demonstrates that the children were both statutorily abandoned and in the custody of the GCJFS for 12 or more months of a consecutive 22-month period.
{¶53} For purposes of
{¶54} Furthermore, the record demonstrates, at the time of the hearing, the children had been in GCJFS’ custody for 22 consecutive months. This is more than sufficient to meet
{¶55} With respect to the best-interest analysis, appellant argues the trial court erred in failing to consider both the wishes of the children, pursuant to
{¶56} “The [trial] court must consider all of the elements in
{¶57} In this case, the trial court drew the following summary conclusion relating to the children‘s best interests: “The Court finds that granting the Motion for Permanent Custody is in the best interests of the children, and the motion is hereby granted.” This determination, while perhaps supported by the record, neither discusses the
{¶58} Appellant‘s first assignment of error has merit.
{¶59} Appellant‘s third assignment of error states:
{¶60} “Appellant was denied the effective assistance of trial counsel as guaranteed by the
{¶61} Appellant argues her trial counsel was ineffective for failing to object to the lack of any evidence relating to the children‘s wishes. We do not agree.
{¶62} When presented with a claim of ineffective assistаnce of counsel in proceedings to terminate parental rights, Ohio courts apply the two-prong test set forth
{¶63} The GAL‘s final report includes a section captioned “Wishes of Child(ren)” Under this rubric, the GAL states:
{¶64} “The сhildren are thriving. [The children‘s step siblings] are currently living with [their father] in his parents’ home and are well adjusted; [the children] remain with foster parents and like visiting [their step siblings, “Daddy” and “grandma” at [the step-siblings’ father‘s home] for a few hours on Saturday. P.O. expressed she likes her new school.”
{¶65} In a previous report, filed in January 2014, the GAL further emphasizes that “the children are happy in their foster home and are thriving.”
{¶66} Moreover, each of the children had separate counsel to represent their rights and interests at the permanent custody hearing. Counsel for each child noted they have been in custodial limbo for some time and the children desperately need stability and permanency as soon as possible. Although these points were not conveyed directly by the children, counsel can be viewed as a mouthpiece of the children‘s wishes. These wishes were represented on record and advocated for at the hearing.
{¶68} Appellant‘s final assignment of error lacks merit.
{¶69} For the reasons discussed above, this matter is affirmed in part, reversed in part, and remanded. Appellant‘s first assignment of error has limited merit and, as a result, the matter must be reversed and remanded for the narrow purpose of allowing the trial court to conduct a full, statutory best-interest analysis in light of the testimony and evidence submitted at the hearing. Appellant‘s remaining arguments and assigned errors are without merit.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents, Dissenting Opinion to follow.