In re J.S. , 2016 Ohio 5120 ( 2016 )

[Cite as In re J.S., 2016-Ohio-5120.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: J.S. C.A. No. 28154
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 14-09-571
DECISION AND JOURNAL ENTRY
Dated: July 27, 2016
HENSAL, Judge.
{¶1} Appellant, Sherita S., appeals from a judgment of the Summit County Court of
Common Pleas, Juvenile Division, that terminated her parental rights to her minor child, J.S., and
placed him in the permanent custody of Summit County Children Services (“CSB”). This Court
affirms.
I.
{¶2} Appellant, Sherita S. (“Mother”), is the mother of J.S., born June 29, 2010.
Donald S. (“Father”) established his paternity to J.S. through genetic testing, but did not
otherwise participate in the proceedings below and did not appeal from the judgment of the trial
court.
{¶3} On the evening of August 31, 2014, Akron police officers investigated a call that
a woman, who appeared to be intoxicated or on drugs, was wandering around the
Tulip/Clifford/Beardsley neighborhood with a small child. Eventually, officers located a
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woman, later identified as Mother, on the steps of her home in the specified neighborhood.
Inside the home, police found four-year-old J.S., sleeping on the bare floor. The child was
unclothed except for urine-soaked tennis shoes, and police found him to be very difficult to
awaken. The home had no furniture, clothing, or food except for a box of takeout chicken on top
of the refrigerator and numerous empty beer, wine, and malt liquor bottles. Police testified that
Mother appeared to be disoriented and intoxicated, as evidenced by slurred speech, red and
glassy eyes, and a smell of stale alcohol. They determined that Mother was unable to care for a
small child and transferred her to a hospital emergency room. Police took protective custody of
J.S. pursuant to Juv.R. 6, transported him to Akron Children’s Hospital for examination, and
contacted CSB.
{¶4} Thereafter, CSB filed a complaint in juvenile court, alleging that J.S. was a
neglected and dependent child. The complaint explained how the child came to be in CSB
custody, and further asserted that four-year-old J.S. was not toilet trained, had significant
language delays, was behind on his immunizations, demonstrated aggressive acting-out
behaviors, and used profanity.
{¶5} The biological father of J.S. never had a relationship with the child. Upon being
notified of these proceedings, he initially professed interest in pursuing custody, but failed to
take any steps towards establishing a relationship with the child or otherwise becoming involved
in the case.
{¶6} The trial court adjudicated J.S. to be a neglected and dependent child and
thereafter granted temporary custody to CSB. No relatives were available to provide care for the
child and J.S. was placed in a foster home. In addition, the trial court adopted a case plan for
Mother which required her to: (1) maintain stable housing and adequate income to provide for
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the child’s basic needs; (2) complete a chemical dependency evaluation, submit to drug tests, and
follow recommendations; (3) complete a mental health evaluation and follow recommendations
to develop greater parenting insight and judgment as well as to develop healthy social networks
to support positive functioning. Mother was offered a minimum of one hour of supervised
visitation weekly at the visitation center.
{¶7} Mother has a history with children services and her parental rights had previously
been terminated to two siblings of J.S. See In re J.B., 9th Dist. Summit No. 23436, 2007-Ohio-
620. Another of Mother’s children was placed in the legal custody of that child’s father.
{¶8} CSB moved for permanent custody of J.S. on August 4, 2015. The agency sought
and was granted a reasonable efforts bypass based on the prior termination of Mother’s parental
rights to two of her other children. See R.C. 2151.419(A)(2)(e). Following a hearing on CSB’s
motion for permanent custody, the trial court granted permanent custody to CSB and terminated
Mother’s parental rights to J.S. Mother appeals and assigns two errors for review.
II.
ASSIGNMENT OF ERROR I
Counsel for Mother conducted the trial in a deficient manner which was
prejudicial to Mother’s parental rights when he did not challenge the admissibility
of any of the evidence introduced at trial, did not move for a directed verdict at
the close of the state’s case, and thus did not provide effective assistance to
mother in violation of her constitutional right to counsel.
{¶9} Mother argues that her trial lawyer did not provide her with effective assistance of
counsel. The test for ineffective assistance of counsel used in criminal cases is equally
applicable to permanent custody proceedings. In re C.M., 9th Dist. Summit Nos. 23606, 23608,
and 23629, 2007-Ohio-3999, ¶ 27. This standard two-part test requires a demonstration of
deficient performance and resultant prejudice. See Strickland v. Washington, 466 U.S. 668, 687
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(1984); State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus. Proof of both
parts of the test is necessary to establish the claim of ineffective assistance of counsel. Bradley
at 142-143.
{¶10} Mother offers two examples that she believes demonstrate the ineffective
assistance of her trial counsel. She first claims that her trial lawyer was ineffective because he
did not challenge “the admissibility of the caseworker’s testimony nor of the exhibits introduced
by the court.” She asserts that the caseworker’s testimony was “speculative” as to her use of
alcohol with “vague comments about time frames and numbers of urine drops” and that the
testimony regarding Mother’s failure to complete counseling with Summit Psychological was
likewise vague. This Court declines to address this assignment of error because Mother’s
appellate brief fails to identify the parts of the record on which she relies.
{¶11} An appellant’s brief is required to contain argument and law “with citations to the
authorities, statutes, and parts of the record on which the appellant relies.” App.R. 16(A)(7).
Mother has neglected to provide any “citations to the * * * parts of the record on which [she]
relies” as required by App.R. 16(A)(7) and to create an argument around those facts of record.
She has failed to provide any specific references to the record where she believes counsel should
have objected and where errors may have occurred.
{¶12} Pursuant to App.R. 12(A)(2), this Court “may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief, as required
by App.R. 16(A).” This rule reflects the principle that “[a]n appellant bears the burden of
affirmatively demonstrating error on Appeal.” In re Robinson, 9th Dist. Summit No. 20826,
2002 WL 501149, *2. It is not the obligation of an appellate court to search the record for
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evidence to support an appellant’s claim of an alleged error. In re Williams, 9th Dist. Summit
No. 19806, 2000 WL 1349805, *2 (appellate court did not address ineffective failure to object to
hearsay where appellant failed to identify the points in the record where the alleged error
occurred). In Williams, this Court held that “unsubstantiated assertions cannot be considered on
appeal as sufficient to carry [appellant’s] burden of showing that she was not adequately
represented by counsel at trial.” Id. Accordingly, we disregard this argument pursuant to App.R.
12(A)(2).
{¶13} Second, Mother claims that her trial lawyer provided ineffective representation
because he did not move for a directed verdict at the close of CSB’s case. The argument is
without merit because Mother has failed to demonstrate deficient performance.
{¶14} To establish deficient performance, Mother must show that counsel’s performance
fell below an objective standard of reasonable representation. Strickland, 466 U.S. 668, at 687-
688; Bradley, 42 Ohio St. 3d, at paragraph two of the syllabus. This Court has previously held
that “a motion for directed verdict pursuant to Civ.R. 50 is inappropriate in a non-jury trial.” Alh
Properties, P.L.L. v. Procare Automotive Serv. Solutions, L.L.C., 9th Dist. Summit No. 20991,
2002-Ohio-4246, ¶ 8, citing Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist.2001).
Mother has failed to present any argument or legal authority demonstrating that the filing of
motion for a directed verdict in this situation is required by “an objective standard of reasonable
representation.” See Bradley at paragraph two of the syllabus. See also Strickland at 687-688.
Consequently, Mother has not demonstrated that trial counsel’s behavior in this regard was
deficient, and she has, therefore, failed to establish the ineffective assistance of her trial counsel.
{¶15} Mother’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
{¶16} Mother has incorrectly included two different versions of the second assignment
of error in her appellate brief. This version is included in the preliminary pages of her brief:
The trial court committed plain error by excusing the state from the burden of
following the prescriptions of local rule 7.02(A) regarding pretrial statements and
by reminding the state to move exhibits into evidence after the state had already
rested its case to the profound prejudice of the mother and deprivation of her
constitutional rights.
This version is included in the body of her brief and is attached to her argument:
The trial court abused its discretion when it excused the state from the burden of
following the prescriptions of Local Rule 7.02(A) regarding pretrial statements
and when it reminded the state to move exhibits into evidence after the state had
already rested its case to the profound prejudice of the mother and deprivation of
her constitutional right to due process.
{¶17} One version of the assigned error asserts that the trial court committed plain error,
while the other asserts that the trial court abused its discretion. From Mother’s supporting
argument, we are unable to discern which version Mother intended to argue. That is because
Mother has not presented any legal argument regarding either plain error or abuse of discretion
and has not cited any legal authority related to either plain error or abuse of discretion. In
addition, Mother has not provided any references to the parts of the record where any alleged
errors occurred as required by the appellate rules. See App R. 16(A)(7). Finally, Mother does
not explain how she was prejudiced. See also Loc.R. 7(B)(7) of the Ninth Appellate District
requiring the argument in an appellant’s brief to contain “the contentions of the appellant with
respect to the assignments of error and the supporting reasons with citations to the authorities
and statutes on which the appellant relies.”
{¶18} Pursuant to App.R. 12(A)(2), this Court “may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on which the
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assignment of error is based or fails to argue the assignment separately in the brief, as required
by App.R. 16(A).” This rule reflects the principle that “[a]n appellant bears the burden of
affirmatively demonstrating error on Appeal.” In re Robinson, 9th Dist. Summit No. 20826,
2002 WL 501149, *2. This Court will not create an argument on appellant’s behalf. See In re
G.E.S., 9th Dist. Summit No. 23963, 2008-Ohio-2671, ¶ 53 (appellant claims trial counsel
failed to point out “glaring inconsistencies,” but failed to specify those inconsistencies or how
doing so would have change the result of his trial).
{¶19} Mother’s second assignment of error is overruled.
III.
{¶20} Mother’s two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
ALEXANDRA HULL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.