17AP-466 and 17AP-467 ( 2018 )

[Cite as 17AP-466 and 17AP-467, 2018-Ohio-2413.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: : No. 17AP-466
M.H., a.k.a. Mc.H., (C.P.C. No. 14JU-14887)
:
(M.H., Sr., (REGULAR CALENDAR)
Appellant). :
and
In the Matter of: :
M.H., a.k.a. Mk.H. et al., No. 17AP-467
: (C.P.C. No. 14JU-14815)
(M.H., Sr.,
Appellant). : (REGULAR CALENDAR)
D E C I S I O N
Rendered on June 21, 2018
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEALS from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
BRUNNER, J.
{¶ 1} Appellant, M.H., Sr. (hereinafter "M.H."), appeals two judgments entered by
the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch, on June 2, 2017 in case Nos. 14JU-14815 and 14JU-14887 granting permanent
custody of his1 three biological children ("Mk.H.,2 " "D.H.," and "Mc.H.") to Franklin
County Children Services ("FCCS"). We overrule M.H.'s sole assignment of error and affirm
1 M.H. is stated to be the biological parent of all three children. However, while he legally established
parentage over two of the children, Mk.H. and D.H., he only alleged parentage with regard to Mc.H. See FCCS
Ex. Nos. 25-27, 30-31, Apr. 20, 2017 Hearing. Yet, he contested FCCS' permanent custody motion as to all
three.
2 Mk.H. and Mc.H. have identical initials. We thus distinguish them with additional letters attached to their
initials; hence, Mk.H. and Mc.H.
Nos. 17AP-466 and 17AP-467 2
the judgments of the trial court, finding that M.H.'s trial counsel rendered constitutionally
effective assistance of counsel.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Two complaints were filed on November 12, 2014, one concerning Mk.H.
(born 2007) and D.H. (born 2009), (case No. 14JU-14815) and the other concerning Mc.H.
(born 2010), (case No. 14JU-14887). (Nov. 12, 2014 Compl. 14JU-14815; Nov. 12, 2014
Compl. 14JU-14887.) FCCS alleged in its first complaint that Mk.H. and D.H. were
dependent children. (Nov. 12, 2014 Compl. 14JU-14815.) FCCS alleged in its second
complaint that Mc.H. was abused, neglected, and dependent. (Nov. 12, 2014 Compl. 14JU-
14887.) Both complaints contained descriptions of abuse and psychological problems
alleged to have been inflicted on the children by their mother, and each complaint indicated
the location of their father, M.H., to be unknown. (Compl. 14JU-14815 at 1; Compl. 14JU-
14887 at 1.) Two days after FCCS filed the complaints, the trial court awarded temporary
custody of the children to FCCS. (Nov. 14, 2014 T.C. Order 14JU-14815 at 3; Nov. 14, 2014
T.C. Order 14JU-14887 at 3.)
{¶ 3} Several months thereafter, in January and February 2015, the trial court held
two hearings. At the first of these, on January 15, 2015, the children's mother appeared but
did not contest the abuse and dependency allegations. (Jan. 15, 2015 Hearing Tr. at 3-4,
filed Oct. 30, 2017.) The trial court issued two orders following the hearing and, on January
29, 2015, adjudicated Mc.H. to be "an abused minor," and Mk.H. and D.H. to be "dependent
minors." (Jan. 29, 2015 Jgmt. Entry 14JU-14815 at 2; Jan. 29, 2015 Jgmt. Entry 14JU-
14887 at 2.) Despite publication service on all men stated to be fathers3 of the children for
whom a change of custody has been sought, M.H. did not appear at the January hearing.
(Jan. 15, 2015 Hearing Tr. at 3.)
{¶ 4} At the second hearing, on February 4, 2015, the magistrate noted that this
case was a refiled version of a prior case and that the original emergency removal actually
took place in Summer 2014. (Feb. 4, 2015 Hearing Tr. at 3-4, filed Oct. 30, 2017; see also
FCCS Ex. No. 14, July 1, 2014 T.C. Order 14JU-8641; FCCS Ex. No. 16, July 1, 2014 T.C.
Order 14JU-8641.) M.H. also failed to appear for this hearing. (Feb. 4, 2015 Hearing Tr.
3 Our decision concerns Mk.H., D.H., and Mc.H. because they are the only children for which custody is at
issue in this appeal. However, the mother of Mk.H., D.H., and Mc.H. also had other children for whom her
rights to continued custody were also being decided by the trial court.
Nos. 17AP-466 and 17AP-467 3
in passim.) Later on the same day, the trial court adopted a case plan prepared by FCCS.
(Feb. 5, 2015 Entry Adopting Case Plan 14JU-14815; Feb. 4, 2015 Case Plan 14JU-14815;
Feb. 5, 2015 Entry Adopting Case Plan 14JU-14887; Feb. 4, 2015 Case Plan 14JU-14887.)
The case plan required M.H. to obtain housing, obtain legal income sufficient to meet the
basic needs of the children, complete domestic violence classes, complete parenting classes,
establish paternity for all his children, sign releases of information for all service providers,
and cooperate with announced or unannounced home visits at least every calendar month.
(Feb. 4, 2015 Case Plan 14JU-14815 at 12; Feb. 4, 2015 Case Plan 14JU-14887 at 12.)
{¶ 5} Approximately one year after the complaints were filed, in October 2015, the
children's mother filed pro se motions for custody. (Oct. 22, 2015 Mother Mot. for Custody
14JU-14815; Oct. 22, 2015 Mother Mot. for Custody 14JU-14887.) On motion of FCCS, the
trial court, on October 28, 2015, extended the temporary custody order. (Oct. 28, 2015
Jgmt. Entry 14JU-14815; Oct. 28, 2015 Jgmt. Entry 14JU-14887.) Shortly thereafter, on
November 16, 2015, FCCS moved for permanent custody. (Nov. 16, 2015 Mot. for P.C.
14JU-14815; Nov. 16, 2015 Mot. for P.C. 14JU-14887.)
{¶ 6} The children's mother failed to appear for the hearing on November 19, 2015
on her motions for custody and the motions were in consequence dismissed. (Nov. 19, 2015
Entry Dismissing Mot. 14JU-14815; Nov. 19, 2015 Entry Dismissing Mot. 14JU-14887;
Nov. 17, 2015 Hearing Tr. at 3-4, filed Oct. 30, 2017.) M.H. also did not appear at that
hearing. (Nov. 17, 2015 Hearing Tr. in passim.)
{¶ 7} At a hearing on February 25, 2016, the children's mother was present and was
served with the permanent custody motions. (Feb. 25, 2016 Hearing Tr., filed Oct. 30,
2017.) M.H. again did not appear. Id. in passim.
{¶ 8} M.H. appeared in the case for the first time at a hearing on March 31, 2016,
over one and one-half years after the initial removal of the children and several months
(and two hearings) after the filing of motions for permanent custody. (Mar. 31, 2016
Hearing Tr. at 2, filed Oct. 30, 2017.) The attorney for FCCS indicated for the record that
M.H. was served with the permanent custody motions. Id. at 3. M.H. appeared pro se at
the March hearing but obtained an attorney shortly thereafter. Id. at 8-9; Apr. 5, 2016
Entry Appointing Counsel.
Nos. 17AP-466 and 17AP-467 4
{¶ 9} Approximately one year later, the case came up for trial on the permanent
custody motions. (Apr. 20, 2017 Tr., filed Oct. 31, 2017.) The children's mother did not
oppose the motions and did not appear for the hearing. Id. at 10. M.H.'s attorney appeared
to oppose the permanent custody motions of FCCS as to Mk.H., D.H., and Mc.H. Id. at 10-
11. M.H. did not appear until one hour after proceedings had begun having mistaken the
date. Id. at 10-11, 19. Although M.H. opposed the permanent custody motion of FCCS at
trial and requested custody of the children in his written closing argument, in the nearly
three-year life of the case, he never filed a motion for custody of the children. Id. at 10-11;
May 15, 2017 M.H. Closing Brief at 1.
{¶ 10} During the course of the permanent custody hearing, three witnesses
testified, M.H., John Bates (guardian ad litem for the children), and Mychal Featherstone
(caseworker in charge of the case). The parties also stipulated to the admission of a number
of exhibits including a psychological evaluation of M.H. (Stipulation 2, FCCS Ex. No. 2.)
{¶ 11} M.H. testified that he met the children's mother when he was in high school
and dropped out in order to be with her. (Apr. 20, 2017 Tr. at 145-46.) In 2009, after
fathering a child with her for the third time (but before Mc.H. was born) M.H. met his
current wife and left his children and their mother behind. Id. at 147-51. After that point,
M.H. admitted that his contact with Mk.H., D.H., and Mc.H. was less than regular and that
he never paid child support. Id. at 34-36, 152-53, 179; Apr. 21, 2017 Tr. 186-89. His
recollection was that (even before the 2014 emergency removal in this case) the children
were in the custody of FCCS for approximately two years beginning in 2011. (Apr. 20, 2017
Tr. at 34-36.) Nonetheless, M.H. reported that he often saw them on Thursdays to get ice
cream, sometimes watched them on the weekends, and that he visited them often during a
time in which his mother served as a placement for the children. Id. at 152-53; Apr. 21,
2017 Tr. 186-89.
{¶ 12} M.H. admitted that he smoked marijuana and had smoked regularly since he
was very young. (Apr. 20, 2017 Tr. at 56-59.) He denied current marijuana use on the first
day of the hearing. Id. at 57-58. However, after agreeing to take a drug test and testing
positive during the hearing, he was forced to admit that he had smoked recently after all
and that he was finding it difficult to stop, having smoked for so long. Id. at 127-28; Apr. 21,
2017 Tr. at 284-85.
Nos. 17AP-466 and 17AP-467 5
{¶ 13} In the course of M.H.'s testimony, FCCS introduced certified copies of court
documents to the effect that M.H. was convicted of carrying a concealed weapon (a fourth-
degree felony) and sentenced to community control. (Apr. 20, 2017 Tr. at 83-92; FCCS Ex.
No. 18, Aug. 10, 2010 Jgmt. Entry.) The records introduced and partially read into the
record also showed that M.H. was accused by the probation department of having failed
multiple drug tests during 2011-2013 (for marijuana), that he stipulated to the violations,
and that his community control was terminated unsuccessfully. (Apr. 20, 2017 Tr. at 90-
92; FCCS Ex. No. 20, Apr. 4, 2014 Req. for Revocation; FCCS Ex. No. 19, May 6, 2014 Entry
at 1.)
{¶ 14} M.H. admitted that he was accused (but not convicted) of domestic violence
involving the mother of Mk.H., D.H., and Mc.H. (Apr. 20, 2017 Tr. at 98-99; Apr. 21, 2017
Tr. at 219-20.) He also admitted that he was convicted of domestic violence in another
incident in which he allegedly punched his current wife in the face, splitting her eyebrow.4
(Apr. 20, 2017 Tr. at 100-101; FCCS Ex. No. 21, Municipal Court Recs. 14CRB-2312.) He
denied the incident and stated that he only pled guilty to get out of jail. (Apr. 20, 2017 Tr.
at 100-01; FCCS Ex. No. 21.) But M.H. later testified that the violence did occur and he
maintained that his activity in his church had kept him away from such trouble in the time
since. (Apr. 21, 2017 Tr. at 250-52.) Certified copies of court records were admitted into
evidence to substantiate the domestic violence incident. (FCCS Ex. No. 21.) M.H. also
admitted that in 2013 he filed for divorce from his current wife but testified that he merely
did it to get the reaction he wanted from his wife. (Apr. 20, 2017 Tr. at 102-05; FCCS Ex.
No. 22, Jan. 24, 2013 Compl. 13DR-278.) Notwithstanding these incidents, M.H. testified
that his relationship with his wife was perfect and that, as of the time of trial, he had the
family life he had always wanted. (Apr. 21, 2017 Tr. at 250.)
{¶ 15} M.H. testified that his apartment was small, an "apartment for one, but it's a
two bedroom," and that he shared it with his wife and the two children they had together.
Id. at 231. He testified that he was employed and that he and his wife's combined income
was approximately $2500 per month. (Apr. 20, 2017 Tr. at 111.) He explained that he had
4 We note that the exhibit merely reports that M.H. "split[]" or "cut[]" "the eye open." (FCCS Ex. No. 21 at 3-
4.) As M.H. was not accused of felonious assault (for more serious injury to the victim, such as to the eye,
itself), we infer that eyebrow rather than eyeball was intended by the use of the phrase "splitting" or "cutting"
"the eye open." Id.
Nos. 17AP-466 and 17AP-467 6
tried to find better housing but failed due to budgetary constraints, his wife's eviction
records, and his felony conviction. (Apr. 21, 2017 Tr. at 236-37.) Despite the fact that he
previously admitted to having a suspended driver's license, he testified that he and his wife
(who also did not have a valid driver's license) had been driving around looking for a larger
place to live. Id. at 289-91; Apr. 20, 2017 Tr. at 111.
{¶ 16} M.H. agreed that the children might have special needs but was not aware of
the extent of the abuse they had suffered and felt that they should not be medicated.
(Apr. 20, 2017 Tr. at 108-09, 114-23.) He felt it was not important to talk to the children
about who hurt them and that it was better to focus on the fact he loves them and they love
him. Id. at 167-70. He explained it was his belief that all that was really wrong with the
kids was that they were missing the loving foundation that he described only a biological
parent can provide. Id. at 108-09, 112, 173-74.
{¶ 17} He admitted he never legally established paternity over Mc.H. (Apr. 21, 2016
Tr. at 268.) He also admitted that when the agency contacted him in 2015, he declined to
become involved because last time FCCS became involved he was given the "run around"
and the children were still returned to their mother. Id. at 278-79. M.H. testified that he
never sought custody of the children during this case or during any of the prior involvement
with FCCS because he did not have a great lawyer. Id. at 294-95.
{¶ 18} The caseworker, Mychal Featherstone, testified that she had been the
caseworker for the children (and their three half-siblings who are not subjects of this
appeal) since August 2015. (Apr. 20, 2017 Tr. at 223.) She confirmed that M.H. was legally
the father of Mk.H. and D.H. but had never established legal paternity of Mc.H. Id. at 226-
27. Featherstone testified (and the parties stipulated) that (with respect to this case) the
children have all been in the custody of FCCS since July 1, 2014. Id. at 237-41.
{¶ 19} Featherstone testified that her first contact with M.H. was in 2015 when she
called him. (Apr. 21, 2017 Tr. at 10.) She reported that he was abrasive on the telephone,
agreed to a meeting with her, but then he failed to show up. Id. She did not have contact
with him again until she called him in 2016 and arranged to meet. Id. at 10-11. During the
meeting, he denied that domestic violence occurred between him and the children's mother
and also denied drug use. Id. at 11. She asked him to complete a psychological exam and
participate in drug testing. Id. He completed one drug screen on that occasion which came
Nos. 17AP-466 and 17AP-467 7
back positive for marijuana. Id. at 12-13. Whereupon, M.H. admitted that he smoked
marijuana, had done so for a long time, and was not sure he could quit. Id.
{¶ 20} Featherstone reported that all three of the children involved in this case suffer
from Attention Deficit Hyperactivity Disorder ("ADHD") and Post-Traumatic Stress
Disorder ("PTSD") and have Individualized Education Programs ("IEPs") at school. Id. at
38. She disagreed with M.H.'s contention that love is all that is needed to care for these
children appropriately and expressed concerns about his ability and dedication to handle
the children's needs on a long-term basis. Id. at 54-55. Specifically, she reported that FCCS
gave M.H. resources to help him find a larger home suitable to having more children under
his care, but that he failed to take advantage of them. Id. at 14-15. She also noted that M.H.
never cooperated in a home visit, would fail to answer the door for even scheduled visits,
and never returned calls or contacted her after she left her card following missed visits. Id.
at 14-15, 84-85.
{¶ 21} Due to scheduling difficulties and M.H. missing one appointment,
Featherstone said she did not receive M.H.'s psychological testing results until January
2017. Id. at 15-19. The psychological test showed good interactions between M.H. and the
children on visits. (FCCS Ex. No. 2, M.H. Psych. Report at 11-12, 15; Apr. 21, 2017 Tr. at 85-
91; see also Apr. 21, 2017 Tr. at 48-49.) However, the text evinced concerns about M.H.'s
ability to parent under stress, his ability to cope with his children's PTSD, his capacity to
provide a safe, stable environment, his drug use, and his criminal history. (Apr. 21, 2017
Tr. at 22-23, 91; FCCS Ex. No. 2). Featherstone testified that even during the several-month
time between the release of the test results and the April trial, M.H. did not complete any
of the recommendations that resulted from the psychological review or even meet with her
to discuss the results, had flatly refused to stop smoking marijuana, and had failed to find
a larger home to accommodate the three additional children. Id. at 65, 93, 115, 122-23.
Featherstone concluded that, despite the fact that FCCS personnel (including her) visited
M.H.'s home, despite the fact that notices relating to the case were routinely sent to M.H.'s
proper address (and never returned), he had essentially failed to engage with FCCS. Id. at
22-24, 147-49.
{¶ 22} Featherstone reported that the children's foster mother has special training
in how to address the needs of children with PTSD and ADHD and that the children are
Nos. 17AP-466 and 17AP-467 8
managed well in the care of their foster family. Id. at 38-43. She testified that the children
are thriving in the care of their foster parents, are bonded to both foster mother and father,
and that the foster parents have expressed the desire to adopt the children if permitted to
do so. Id. at 43-47. In light of that and her other testimony, Featherstone recommended
that the permanent custody motion be granted. Id. at 63-64.
{¶ 23} John Bates, guardian ad litem for the children, testified that M.H. had done
too little for his children too late. (Apr. 20, 2017 Tr. at 182, 201-02, 214-15, 220.)
Specifically, M.H. had been unable to cease using marijuana, had not found larger
accommodations despite several years in which to do so, had not responded to the
guardian's attempt to visit, and had (other than being present for visits) essentially done
nothing on the case plan. Id. at 202-03, 206-07, 214-15, 220. With specific regard to the
marijuana, Bates testified that M.H.'s use, per se, was not the real problem. (Apr. 21, 2017
Tr. at 306.) The real problem was M.H.'s dishonesty about it, his lack of concern for court
orders, and his demonstrated inability to conform to the law even for his children's sake.
Id. at 306-07, 312-14. In that vein, Bates noted that M.H. admitted that he and his wife,
neither of whom had driver's licenses, had been driving and that both M.H. and his wife
had outstanding warrants for arrest (M.H., for driving on a suspended license, and his wife,
for two counts of operating a vehicle while impaired (OVI) and for driving on a suspended
license). Id. at 312-14; see also Apr. 20, 2017 Tr. at 132.
{¶ 24} Bates echoed Featherstone's sentiments about the foster family. He testified
that the foster family had a large property in the country with a trampoline, bikes, dogs,
and a big dining table around which the children gathered for meals as a family. (Apr. 20,
2017 Tr. at 189-91.) He confirmed that the foster parents were prepared to adopt the
children. Id. at 201. He testified that all the children had expressed to him their wish to be
adopted and understood what the concept meant. Id. at 191-92, 201. Bates reported that
while none of them wanted to go back to their abusive mother, they had held out some hope
for going to live with their father. Id. at 192. However, they seemed to understand that
their father needed to make more of an effort to provide an appropriate living environment
for them and, despite his expressed intentions, he was never going to do that. Id.
{¶ 25} Bates also recommended permanent custody be granted to FCCS. Id. at 201-
02.
Nos. 17AP-466 and 17AP-467 9
{¶ 26} On June 2, 2017, the trial court issued orders in case Nos. 14JU-14815 and
14JU-14887 granting the permanent custody motions as to all three children at issue in this
appeal. (June 2, 2017 Jgmt. Entry 14JU-14815; June 2, 2017 Jgmt. Entry 14JU-14887.) In
granting the permanent custody motions, the trial court several times remarked that it had
not found M.H. to be a credible witness. (June 2, 2017 Jgmt. Entry 14JU-14815 at 10-11;
June 2, 2017 Jgmt. Entry 14JU-14887 at 10-11.) It observed that M.H. "minimizes the
special needs of the children because of his inadequacy to meet those needs and/or his
unwillingness to do so." (June 2, 2017 Jgmt. Entry 14JU-14815 at 13; June 2, 2017 Jgmt.
Entry 14JU-14887 at 13.) It opined:
It is abundantly clear that Father lacks insight as to his
Children's needs and his own shortcomings as an adequate
parent. With the exception of maintaining supervised
visitation with his Children, Father made no effort to complete
any case plan objectives. His efforts to maintain supervised
visitation only commenced subsequent to the filing of the
motion for permanent custody.
(June 2, 2017 Jgmt. Entry 14JU-14815 at 11; see also June 2, 2017 Jgmt. Entry 14JU-14887
at 11.) The trial court summed up:
[F]rom the day Father left the home of his children (before
August 8, 2010) until the date of the hearing (April 20 and 21,
2017) Father has shown an unwillingness to provide an
adequate permanent home for his children.
(June 2, 2017 Jgmt. Entry 14JU-14815 at 13; June 2, 2017 Jgmt. Entry 14JU-14887 at 13.)
{¶ 27} M.H. now appeals.
II. ASSIGNMENT OF ERROR
{¶ 28} M.H. assigns a single error for review:
Appellant was prejudicially deprived of his United States and
Ohio constitutional rights to a fair trial due to the ineffective
assistance of counsel.
III. DISCUSSION
A. Legal Standards to be Applied in Reviewing the Trial Court's Decision
{¶ 29} M.H. argues that his trial counsel was ineffective to a constitutionally
deficient degree because she failed to object to several items of evidence that he now argues
were excludable hearsay. (M.H.'s Brief at 7-15.) Before addressing each of the specific items
Nos. 17AP-466 and 17AP-467 10
of alleged hearsay, we review the law of hearsay and ineffective assistance of counsel in
permanent custody hearings.
{¶ 30} Juv.R. 34(I) provides that, unlike a typical dispositional hearing, the rules of
evidence are applicable in permanent custody hearings. The Ohio Rules of Evidence
generally define " 'Hearsay,' " as "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Evid.R. 801(C). Hearsay is generally not admissible. Evid.R. 802.
{¶ 31} Ineffective assistance of counsel claims are assessed using the two-pronged
approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the
defendant must show that counsel's performance was deficient. * * * Second, the defendant
must show that the deficient performance prejudiced the defense." Id. at 687. "In
evaluating counsel's performance, 'a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action "might be considered sound trial strategy." ' " State v. Roush, 10th Dist.
No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955). " 'To show that a defendant has been prejudiced by
counsel's deficient performance, the defendant must prove that there exists a reasonable
probability that, were it not for counsel's errors, the result of the trial would have been
different.' " State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting State
v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. The failure to make
either showing (deficient performance or prejudice) defeats a claim of ineffective assistance
of counsel. Bradley at 143, quoting Strickland at 697 ("[T]here is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes an insufficient showing
on one.").
B. Psychological Report
{¶ 32} M.H. first argues that counsel was ineffective in stipulating to the
admissibility of M.H.'s psychological evaluation. (M.H.'s Brief at 8-9.) However, while the
psychological report did contain damaging information, it also contained favorable
observations about M.H.'s mental stability and about his good behavior during visits.
Compare FCCS Ex. No. 2 at 11-15 with id. at 19. M.H.'s counsel used positive aspects of the
Nos. 17AP-466 and 17AP-467 11
psychological report when cross-examining the guardian ad litem and caseworker.
(Apr. 21, 2017 Tr. at 85-91, 309-10.) Under the circumstances, we cannot say that the
decision to stipulate to the admissibility of the psychological report was so obviously a
mistake as to overcome the strong presumption that counsel's decision amounted to sound
trial strategy. Roush at ¶ 37.
C. Documents Regarding M.H.'s Probation Violations
{¶ 33} M.H. next argues that his counsel was ineffective in failing to object on the
basis of hearsay to the admission and use of records of M.H.'s probation violations. (M.H.'s
Brief at 10.) Specifically, M.H.'s counsel failed to object to FCCS exhibit No. 20, a request
for revocation in which M.H.'s probation officer alleged that M.H. had been convicted of
domestic violence, had failed to report for a number of urine screens, and had tested
positive for marijuana on nine occasions. (Apr. 20, 2017 Tr. at 90-91; FCCS Ex. No. 20.)
{¶ 34} The request for revocation meets the basic definition of hearsay. It is a
written statement under Evid.R. 801(A) made by a declarant (the probation officer) outside
the proceeding at bar and was offered to prove the truth of the matters asserted therein—
in essence, that M.H. had indeed been convicted of domestic violence, had failed to report
for a number of urine screens, and had tested positive for marijuana on nine occasions.
Evid.R. 801(C); Apr. 20, 2017 Tr. at 90-91; FCCS Ex. No. 20. However, as M.H. stipulated
to the violations of his probation sentence for his criminal conviction, the request for
revocation was "a statement of which the party [M.H.] has manifested an adoption or belief
in its truth" under Evid.R. 801(D)(2)(b). See FCCS Ex. No. 19 at 1. As such, it is not
considered as hearsay notwithstanding the fact that it would otherwise meet the general
definition. Evid.R. 801(D)(2)(b) (setting forth certain categories of evidence as "not
hearsay"). Moreover, the request for revocation was a certified court record and therefore
was a "public record" within the meaning of Evid.R. 803(8). And even if it had been
hearsay, it would have constituted an exception to the general rule of exclusion under
Evid.R. 802.
{¶ 35} An objection on hearsay grounds would not likely have been sustained, and,
thus, we do not find that it was ineffective for counsel to have failed to object.
Nos. 17AP-466 and 17AP-467 12
D. Caseworker's Repetition of the Children's Mother's Statements
{¶ 36} M.H. argues that his counsel was ineffective in failing to object on hearsay
grounds to statements made by the caseworker reporting things told to her by the mother
of the children in this case. (M.H.'s Brief at 10-11.)
{¶ 37} In the first portion of testimony where this occurred, the caseworker related
that she was "assessing" M.H. and was "confused" by the conflicting information she had
been given by M.H. and by the mother of his children about whether there had been
domestic violence in their relationship. (Apr. 21, 2017 Tr. at 11.) When asked to elaborate,
the caseworker explained that M.H. had told her there was no domestic violence while the
mother told her there was. She testified FCCS records showed there was a domestic
violence charge against both M.H. and the mother but the charge against M.H. was
dismissed. Id. at 11-12. The second instance where the allegedly objectionable testimony
occurred was when the caseworker related the mother told her that M.H. had visited her to
vent his feelings on occasions when he had arguments with his current wife. Id. at 152-54.
{¶ 38} Both M.H. and the mother are parties to the case, thus their own statements
could be used against each of them as statements by a party opponent. Evid.R.
801(D)(2)(a). But, as M.H. asserts in his reply brief, the mother's statement seemed to be
used against M.H. (M.H.'s Reply Brief at 4.) That removes it from exemption under Evid.R.
801(D)(2)(a) because it is not his own statement. Id. In short, while M.H.'s out-of-court
statement could be used against him, the mother's statement could not and should not have
been used against him.
{¶ 39} Yet, our reading of the transcript demonstrates that in each instance the
statements of the mother did not appear to be introduced for the truth of what was asserted
therein. Evid.R. 801(C). In the first instance, it appeared the caseworker was not
attempting to state that domestic violence definitely occurred. Rather she appeared to be
attempting to explain that she approached the case with conflicting information and
therefore chose to be cautious and asked M.H. to get a psychological exam to "see what the
recommendations say and go from [there]." (Apr. 21, 2017 Tr. at 11.) In the second
instance, the caseworker did not seem to be introducing the mother's comments about
M.H.'s supposed arguments with his wife to show that indeed such arguments occurred;
rather, the point of the exchange seemed to be M.H. was continuing to have contact with
the children's mother (who was dangerously mentally unstable) and this was a concern. Id.
Nos. 17AP-466 and 17AP-467 13
at 151-52. For example, when Featherstone was asked why she was concerned about what
the mother told her, she related she knew M.H. and the mother were on cordial terms, but
did not realize it was to the point that M.H. visited her in person. Id. This was noteworthy
to the caseworker because M.H. had seemed unfazed by reports of the severe abuse the
mother inflicted on the children and expressed substantiated concern if M.H. was given
custody, he would allow the children to stay with their mother from time to time. Id. at 51-
53, 102-08. In short, an objection to this testimony could have been overruled because the
testimony was not offered for the truth of the matters asserted but rather to explain why
the caseworker (whose testimony was subject to the trier of fact's judgment as to weight
and credibility) believed M.H. should not be awarded custody of the children involved. We
do not perceive these statements, used in this way, to be impermissible hearsay within the
meaning of Evid.R. 801(C). Thus, trial counsel could have intelligently made the decision
not to tender an objection likely to be overruled.
{¶ 40} We " 'must assess the reasonableness of the attorney[']s decisions at the time
they are made, not at the time of our assessment.' " State v. Phillips, 74 Ohio St.3d 72, 85
(1995), quoting State v. Wilkins, 64 Ohio St.2d 382, 390 (1980). "Debatable trial tactics
generally do not constitute a deprivation of effective counsel." Phillips at 85, citing State v.
Clayton, 62 Ohio St.2d 45, 49 (1980).
E. Caseworker's Testimony Concerning Drug Screens
{¶ 41} M.H. argues that his counsel rendered ineffective assistance when she failed
to object and actually adopted the caseworker's testimony concerning the results of drug
screens taken by M.H. (M.H.'s Brief at 11, citing Apr. 21, 2017 Tr. at 12, 29, 97, 136-37, 243-
44.) While we agree that the test results were hearsay in the sense they were out-of-court
assertions by a lab technician that were not directly introduced or testified to by the
technician, we do not find the failure to object was ineffective assistance in this case. See
Evid.R. 801(C). M.H. admitted, before anyone else testified or before any drug screens were
mentioned, that he was a marijuana smoker. (Apr. 20, 2017 Tr. at 56-59.) Initially, he
attempted to deny ongoing use. Id. at 59. However, after agreeing to a mid-trial drug test
and testing positive, he admitted that he had been a habitual smoker of marijuana for such
a long time that he found it impossible to quit. Id. at 127-30; Apr. 21, 2017 Tr. at 284-85.
The fact that he took and failed drug tests during the life of the case, is merely cumulative
of the admissions he already made, and, thus, even if those results might have been
Nos. 17AP-466 and 17AP-467 14
excluded by a timely objection (which we expressly do not find), there is no reasonable
probability the failure to object would have affected the result of this case. Griffin at ¶ 42.
F. Mid-Trial Drug Screen
{¶ 42} M.H. urges we find his counsel was ineffective in failing to object to references
to the results of a failed mid-trial drug screen. (M.H.'s Brief at 11-12.) However, M.H. (not
his attorney) agreed he would take the drug screen after the guardian ad litem requested it.
(Apr. 20, 2017 Tr. at 128.) Thus, if it was an error of strategy to have agreed to the drug
screen, the error was M.H.'s, not his counsel's.
{¶ 43} The results of that test were mentioned by FCCS' counsel in a colloquy with
the court and testified to by the caseworker on the second day of trial. (Apr. 21, 2017 Tr. at
97, 136-37.) While neither method of entering the evidence into the record was adequate
or proper to introduce the results of the test taken by M.H., M.H.'s counsel's failure to object
is entitled to a presumption that it was "sound trial strategy." Roush at ¶ 37; Strickland at
689. That is, counsel would likely have lost the objection and credibility before the trial
court had she attempted to object to introducing the results of a test to which her client
consented, especially given that M.H. admitted to being a habitual marijuana smoker. We
do not consider it reasonably probable, had an objection been offered, the outcome of the
case would have been different. Griffin at ¶ 42; Strickland at 694.
G. Statements by Guardian ad Litem About M.H.'s Wife's Criminal Record
{¶ 44} M.H. requests that we find his counsel was ineffective in failing to object to
statements by the guardian ad litem about M.H.'s wife's criminal record. (M.H.'s Brief at
13.) The guardian ad litem testified that he had learned that M.H.'s wife had three
outstanding criminal warrants, two for OVI and one for driving on a suspended license.
(Apr. 21, 2017 Tr. at 313.) Although M.H. argues that this was hearsay (and it may have
been), the core problem is there was no questioning to establish a foundation for the
guardian's knowledge. We recognize that without a foundation, it is not clear how the
guardian knew about M.H.'s wife's outstanding warrants or whether he was qualified to
testify to such matters and that trial counsel could have objected on that basis. However,
we do not find any reasonable probability exists, had counsel objected, the outcome of the
case would have been different. See Griffin at ¶ 42; Strickland at 694. Indeed, the most
likely result of an objection here seems to be that opposing counsel would have retrenched,
laid the proper foundation, encouraged the court to take judicial notice of dockets in those
Nos. 17AP-466 and 17AP-467 15
other cases, obtained certified copies of the outstanding warrants, or taken some other
action to properly and formally introduce the material.
H. Cumulative Effect
{¶ 45} M.H. argues that the cumulative effect of the failures to object was
constitutionally deficient representation and prejudiced M.H. to such a degree that there is
a reasonable probability that the outcome of the case was affected. (M.H.'s Brief at 14-15.)
We disagree. Even had counsel objected at all junctures M.H. argues were required, and
even if those objections had been sustained, and even if, all evidence introduced explicitly
complied with the rules of evidence or if not, was entirely excluded, the basic facts of the
case remain unchanged. M.H. abandoned his children when two were very young and one
was yet unborn. (Apr. 20, 2017 Tr. at 147-51.) He never paid child support. Id. at 179. He
never obtained housing sufficient for five children and two adults. (Apr. 21, 2017 Tr. at 14-
15.) He never established paternity of Mc.H. Id. at 268. He never engaged with FCCS or
allowed the required monthly home inspections so that he could advance through the case
plan process. Id. at 14-15, 22-24, 84-85, 147-49. He never sought custody of his children
during multiple and multi-year cases with FCCS. (Apr. 20, 2017 Tr. at 10-11.) And he finally
entered an appearance after years of disengagement, when FCCS at last filed a motion for
permanent custody of the children. (Mar. 31, 2016 Hearing Tr. at 2.)
{¶ 46} We agree with the guardian ad litem's description that M.H. did "too little too
late." (Apr. 20, 2017 Tr. at 201.) No testimony about his marijuana use or his wife's driving-
related warrants impacts that basic truth, which is the core reason he is losing these
children to the permanent custody of the State.
IV. CONCLUSION
{¶ 47} We do not find that M.H.'s trial counsel rendered constitutionally ineffective
assistance of counsel. We, therefore, overrule M.H.'s sole assignment of error and affirm
the judgments of the Franklin County Court of Common Pleas, Division of Domestic
Relations, Juvenile Branch.
Judgments affirmed.
BROWN, P.J., and TYACK, J., concur.