In re C.E.

[Cite as In re C.E., 2021-Ohio-3916.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: C.E. : APPEAL NO. C-210407
TRIAL NO. F13-1048Z
:

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 3, 2021

Christopher P. Kapsal, for Appellant Mother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Robert Adam Hardin,
Assistant Public Defender, for Appellee Guardian ad Litem.
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MYERS, Presiding Judge.

{¶1} Mother appeals the Hamilton County Juvenile Court’s judgment

granting permanent custody of her child to the Hamilton County Department of Job

and Family Services (“HCJFS”). The child’s guardian ad litem (“GAL”) and HCJFS

ask this court to affirm the juvenile court’s judgment.

I. Background and Procedural History

{¶2} HCJFS became involved with mother’s children in 2013, but mother

had previous involvement with child protective services in two different states. In

May 2000, the Illinois Department of Children and Family Services became involved

with mother after her three-week-old child died as a result of cosleeping with

mother. The death was ruled an accident, and the case was closed after mother

refused services offered to her by the agency.

{¶3} In 2008, an Iowa court terminated mother’s parental rights to three of

her children due to mother’s history of domestic violence, substance abuse, mental-

health issues and her resistance to services. In 2009, mother gave birth to I.E.-J.,

and in 2010, the Iowa Department of Children Services temporarily removed the

child from mother’s care because of drugs found in the home. I.E.-J. was returned to

mother with orders of protective supervision. The case was closed, and mother and

I.E.-J. moved to Ohio.

{¶4} Mother gave birth to C.E., the subject of this appeal, in July 2016.

When C.E. was three months old, HCJFS obtained interim custody of him and I.E.-

J., after C.E. was found unresponsive in mother’s home. Mother reported that she

had swaddled C.E. and left him on his back on a bed. When she returned to the

room, she said C.E. was face down on the bed with a bloody nose. C.E. was taken by

ambulance to Cincinnati Children’s Hospital Medical Center (“CCHMC”), where he

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was diagnosed with a catastrophic brain injury, with no medical hope of

improvement.

{¶5} In April 2017, the juvenile court adjudicated the children dependent.

Although the court remanded custody to mother with orders of protective

supervision, C.E. remained in CCHMC. Under the protective orders, mother was to

provide HCJFS and the children’s GAL access to her home and to C.E.’s medical

information, and was to comply with random drug screens.

{¶6} In October 2017, HCJFS filed a complaint requesting permanent

custody of both children. With respect to C.E., HCJFS alleged that mother failed to

allow access to his medical records and refused to allow him to be released to a long-

term care facility, even though he had been ready for discharge from a hospital

setting for several months. In November 2017, the agency amended its complaint to

include an allegation that mother had been arrested for driving under the influence.

I.E.-J. was placed in the interim custody of HCJFS, and C.E. remained at CCHMC in

mother’s legal custody.

{¶7} In February 2018, interim custody of C.E. was awarded to HCJFS.

The magistrate found that, although C.E. had been prepared for discharge from

CCHMC since July 2017, he still needed significant medical care that mother was not

able to provide. The magistrate found that mother had not completed the necessary

medical training and that the hospital had not been able to arrange back-up nursing

care for mother’s residence due to safety concerns.

{¶8} In March 2018, HCJFS sought an emergency amendment to C.E.’s

case plan because mother refused to consent to a surgery deemed medically

necessary by C.E.’s medical team. In a letter to the court, one of C.E.’s doctors

described C.E. as “neurologically devastated,” noting that the child is ventilator

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dependent and receives nutrition via a gastronomy tube. The doctor explained that

C.E. has a condition in which his eyelids do not shut on their own, leaving the eyes

open to external irritants and at risk for ulcerations to the corneas due to exposure.

The ulcerations could be sources of pain and infection and put C.E. at risk for further

complications. The doctor recommended a surgical procedure to close the eyelids to

eliminate the risk of exposure damage and its associated complications, and

indicated that the procedure was reversible. The court approved the case-plan

amendment, and C.E. had the surgery.

{¶9} In September 2018, the magistrate denied HCJFS’s motion for

permanent custody of the children. With respect to C.E., the magistrate noted that

C.E. could not be returned to mother because she was unable to provide the

significant medical care that he required. In addition, the magistrate noted that C.E.

had been successfully transferred to St. Joseph’s Infant home, a long-term-care

nursing facility. Temporary custody of C.E. was awarded to HCJFS.

{¶10} In December 2018, the juvenile court sustained HCJFS’s objections to

the magistrate’s decision, and awarded permanent custody of I.E.-J. to HCJFS. The

court adopted that part of the magistrate’s decision denying HCJFS’s motion for

permanent custody of C.E., but its entry contained language committing both

children to the permanent custody of HCJFS. Mother appealed.

{¶11} In the appeal numbered C-190007, this court reversed the award of

permanent custody of C.E. to HCJFS, and held that, to the extent that the juvenile

court’s award of permanent custody of C.E. was simply a clerical error, the matter

was remanded to the juvenile court to correct the error. In re: E.-J. Children, 1st

Dist. Hamilton No. C-190007, 2019-Ohio-1519, ¶ 22. This court affirmed the award

of permanent custody of I.E.-J. to HCJFS. Id. at ¶ 36.

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{¶12} On remand, the juvenile court clarified that its award of permanent

custody had been a clerical error and amended its December 2018 judgment entry to

reflect a grant of temporary custody of C.E. to HCJFS.

{¶13} HCJFS subsequently filed a motion to modify temporary custody to

permanent custody as to C.E. At trial, evidence demonstrated that C.E. has complex

medical needs due to the extent of his permanent brain damage. He requires

gastronomy-tube feeding, numerous medications, and remains on a ventilator. He is

nonambulatory, has no more than reflexive movements, and it is difficult for medical

staff to recognize if he is awake or asleep. He requires therapy to maintain range of

motion, as well as visits from multiple specialty care providers.

{¶14} The HCJFS caseworker testified that mother refused to engage in

substance-abuse and mental-health treatment services, and did not complete the

training necessary to provide the medical care that C.E. would need if he were to live

in her home. Although mother would be eligible for home health care for C.E., it

could not be provided in her home due to safety concerns in her area. The

caseworker testified that mother refused to cooperate with agency efforts to relocate

her to an area where she could receive assistance in her home.

{¶15} The caseworker described mother’s visits with C.E. as “spotty,” noting

that she did not visit him between May and December 2019. He said that it was

HCJFS’s position that it was in C.E.’s best interest to remain at the nursing facility

due to the quality of specialized care that he receives there. He testified that if the

court granted permanent custody of C.E. to HCJFS, both the agency and the nursing

facility would continue to accommodate mother’s visits with C.E.

{¶16} Although mother testified that she was willing to relocate to care for

C.E. in her own home, she admitted that she had known for several years that she

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would have to relocate because home health care nurses could not travel to her

current home due to safety concerns. She denied that she refused to complete

services, and testified that she completed the necessary medical training to have C.E.

in her home. This was belied by the other evidence.

{¶17} Mother also testified that she was satisfied with the level of care that

C.E. was receiving at the nursing facility. She said that if C.E. were placed in her

custody, she would allow him to remain at the nursing facility if C.E.’s doctors

recommended it. She testified that she understood that, even if HCJFS obtained

permanent custody, she would be able to continue to have contact with C.E., and said

that she would continue to have contact with him.

{¶18} Following the trial, the magistrate granted HCJFS’s motion for

permanent custody. The juvenile court overruled mother’s objections to the

magistrate’s decision and awarded permanent custody of C.E. to HCJFS. This appeal

followed.

II. Due-Process Challenge

{¶19} In her first assignment of error, mother argues that the juvenile court

erred in applying R.C. 2151.414(B) and (D), asserting that the statutory provisions

are an unconstitutional violation of due process, as applied to her. She acknowledges

that her failure to raise a constitutional challenge in the trial court waived the issue

and that the issue need not be considered for the first time on appeal. See State v.

Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. We decline mother’s

invitation to consider the constitutional challenge, and we overrule the first

assignment of error.

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III. Weight and Sufficiency

{¶20} In her second assignment of error, mother argues that the juvenile

court erred in finding that permanent custody was in C.E.’s best interest because the

finding was against the manifest weight of the evidence and was not supported by

sufficient evidence.

{¶21} A juvenile court’s determination on a permanent-custody motion must

be supported by clear and convincing evidence. In re B.J., 1st Dist. Hamilton Nos. C-

200372 and C-200376, 2021-Ohio-373, ¶ 14. Clear and convincing evidence is

evidence sufficient to “produce in the mind of the trier of facts a firm belief or

conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538,

2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. We must examine the record and

determine if the juvenile court had sufficient evidence before it to satisfy the clear-

and-convincing standard. In re B.J. at ¶ 14. In reviewing a challenge to the weight of

the evidence, we review the record to determine if the juvenile court lost its way and

created such a manifest miscarriage of justice in resolving conflicts in the evidence

that its judgment must be reversed. Id.

{¶22} A juvenile court may grant permanent custody if it finds that

permanent custody is in the child’s best interest and that one of the conditions in

R.C. 2151.414(B)(1) applies. Id. at ¶ 15. Here, mother does not challenge the juvenile

court’s finding that the condition in R.C. 2151.414(B)(1)(d) was satisfied because the

child was in the temporary custody of HCJFS for 12 or more months of a consecutive

22-month period. Mother challenges the juvenile court’s finding that a grant of

permanent custody was in the child’s best interest.

{¶23} Pursuant to R.C. 2151.414(D)(1), in determining whether permanent

custody is in a child’s best interest, the juvenile court must consider all relevant

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factors, including: (a) the child’s interaction with parents, siblings, relatives, foster

caregivers and out-of-home providers, and any other person who may significantly

affect the child; (b) the child’s wishes, as expressed by the child or through the child’s

guardian ad litem, with due regard for the maturity of the child; (c) the child’s

custodial history; (d) the child’s need for a legally secure permanent placement and

whether that can be achieved without a grant of permanent custody; and (e) whether

any of the factors under R.C. 2151.414(E)(7) to (E)(11) apply. See R.C.

2151.414(D)(1)(a)-(e).

{¶24} With respect to the factor in R.C. 2151.414(D)(1)(a), mother asserts

that her interactions with C.E. included visits to the nursing facility, bringing him

clothes, and monitoring his care. The juvenile court found that C.E. required

significant medical care that mother is unable to provide. The court found that

mother failed to complete her training on how to properly care for the child and had

failed to relocate so that necessary nursing care could be provided, despite knowing

for several years that relocation was necessary.

{¶25} Mother does not challenge the court’s finding that her child is unable

to express his wishes, in relation to R.C. 2151.414(D)(1)(b). With respect to the factor

in R.C. 2151.414(D)(1)(c), the juvenile court found that the child has been in the

temporary custody of HCJFS “for nearly his entire life, and significantly longer than

twelve months.” Mother challenges the nearly-his-entire-life portion of the

statement, pointing out that she had custody of C.E. until he suffered his brain injury

in her care at three months old, and for a ten-month period while he was an inpatient

at CCHMC. However, given that HCJFS had temporary custody of C.E. for nearly

three years before he turned five years old, the court’s statement was accurate.

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{¶26} As to R.C. 2151.414(D)(1)(d), the court found that the child needed a

legally secure permanent placement that was not achievable without a grant of

permanent custody. The court determined that C.E. needed to remain at the nursing

facility to receive the level of care he requires and that mother was unable to provide

the requisite level of care in her home. The record supports the court’s finding, and

mother does not point to evidence that counters this finding.1

{¶27} R.C. 2151.414(D)(1)(e) requires the court to consider whether any

factor listed in R.C. 2151.414(E)(7) through (11) applies. Here the juvenile court

found that the factors in R.C. 2151.414(E)(8), (E)(10), and (E)(11) applied to mother.

{¶28} R.C. 2151.414(E)(8) provides in relevant part: “The parent has

repeatedly withheld medical treatment * * * from the child when the parent has the

means to provide the treatment * * *.” The juvenile court found that this factor

applied because mother had “on multiple occasions” refused to allow the child to

receive necessary medical treatment. At trial, the HCJFS caseworker testified that

mother did not agree to the surgery to close the child’s eyelids “thinking that it would

be hard for [C.E.] to wake up if his eyes were shut.” While this supported the

concern by HCJFS that mother lacked understanding of the child’s medical

condition, the record does not contain evidence related to mother’s “repeatedly”

withholding medical treatment to support a finding under R.C. 2151.414(E)(8).

{¶29} The juvenile court found that the factor in R.C. 2151.414(E)(10)

applied because mother abandoned the child. A child must be presumed abandoned

when its parents have failed to visit or maintain contact with the child for more than

90 days. R.C. 2151.011(C). The juvenile court found that mother failed to visit or

1 Mother also argues that this court remanded the matter so that HCJFS could determine whether
a termination of parental rights was necessary to maintain the child at his current facility.
However, our remand instructed the juvenile court to correct its clerical error.

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contact C.E. between May and December 2019, a period well over 90 days. Although

mother now asserts that the evidence was not competent, she did not object at trial

to the caseworker’s testimony about visitation or provide contradictory evidence, and

she did not challenge it in her objections to the magistrate’s decision. Moreover, she

does not assign as error the juvenile court’s admission of the evidence.

{¶30} The factor in R.C. 2151.414(E)(11) states that “[t]he parent has had

parental rights involuntarily terminated with respect to a sibling of the child * * *,

and the parent has failed to provide clear and convincing evidence to prove that,

notwithstanding the prior termination, the parent can provide a legally secure

permanent placement and adequate care for the health, welfare, and safety of the

child.” Mother concedes that her rights were involuntarily terminated as to four of

her other children (I.E.-J. in Ohio and three of her other children in Iowa in 2008),

and she makes no argument about her ability to provide a secure placement or

adequate care for C.E.

{¶31} Following our review of the record, we hold that the juvenile court’s

determination that C.E.’s best interest is served by a grant of permanent custody is

supported by clear and convincing evidence, and is not against the manifest weight of

the evidence. Therefore, we overrule mother’s second assignment of error.

IV. Conclusion

{¶32} Consequently, we overrule mother’s assignments of error and affirm

the judgment of the juvenile court granting permanent custody of C.E. to HCJFS.

Judgment affirmed.

BERGERON and CROUSE, JJ., concur.

Please note:
The court has recorded its own entry this date.

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