In re R.K. ( 2012 )

[Cite as In re R.K., 2012-Ohio-2739.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: R.K. and M.N. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. CT2012-0006
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Muskingum County
Court of Common Pleas, Juvenile Division,
Case No. 21130123 & 21130124
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2012
APPEARANCES:
For Appellee For Appellant
MOLLY MARTIN JEANETTE M. MOLL
Assistant Prosecuting Attorney P.O. Box 461
Muskingum County Children Services 803B Market Street
22 North Fifth Street Zanesville, OH 43701
Zanesville, OH 43701
BARBARA CAFFARATTI For Father
Guardian Ad Litem Kevin Van Horn
45 North Fourth Street 715 Adair Ave.
Zanesville, OH 43701 Zanesville, OH 43702
[Cite as In re R.K., 2012-Ohio-2739.]
Gwin, P.J.
{¶1} Appellant Stephanie H. appeals a judgment of the Court of Common
Pleas, Juvenile Division, of Muskingum County, Ohio, which granted legal custody of
her minor child, R.K. to his biological father appellee Shawn K. and legal custody of her
minor child M.N. to Cheryl N., the child’s paternal grandmother. Appellant assigns four
errors to the trial court:
{¶2} “I. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED
REVERSIBLE ERROR IN CONDUCTING A DISPOSITIONAL HEARING PRIOR TO
THE CONCLUSION OF THE ADJUDICATORY HEARING SUCH THAT IT FAILED TO
BIFURCATE AS REQUIRED BY LAW.
{¶3} “II. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED
REVERSIBLE ERROR IN GRANTING THE DISPOSITION OF LEGAL CUSTODY AS
THE COURT LACKED JURISDICTION.
{¶4} “III. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED
REVERSIBLE ERROR DUE TO THE FAILURE OF THE GUARDIAN AD LITEM.
{¶5} “IV. THE MUSKINGUM COUNTY JUVENILE COURT COMMITTED
REVERSIBLE ERROR DUE TO THE INEFFECTIVE ASSISTANCE OF MOTHER’S
TRIAL COUNSEL.”
{¶6} The record indicates appellee Muskingum County Children’s Services filed
complaints on August 1, 2011, alleging both children were dependent, neglected, and/or
abused children. The court placed M.N., then approximately 20 months old, in the
temporary custody of Cheryl N., her paternal grandmother. The court placed R.K., then
aged six, with Shirley K., his paternal grandmother.
Muskingum County, Case No. CT2012-0006 3
{¶7} The trial court conducted a hearing for adjudication and disposition
commencing on September 27, 2011. The hearing was completed on January 10,
2012. In the interim, on October 5, 2011, Cheryl N. filed a motion for legal custody of
M.N. On January 10, 2012, the court adjudicated the children neglected and
dependent, and awarded legal custody of R.K. to his father and legal custody of M.N. to
the grandmother.
I.
{¶8} In her first assignment of error, appellant argues the trial court erred in not
bifurcating the adjudicatory hearing and the dispositional hearing.
{¶9} R.C. 2151.35 (B)(1) provides that if the court in a adjudicatory hearing
determines that a child is abused, neglected or dependent, the court shall not issue a
dispositional order until after the court holds a separate dispositional hearing. The court
may hold the dispositional hearing for an adjudicated, abused or dependent child
immediately after the adjudicatory hearing. Juv. R. 34 substantially mirrors the statutory
requirement.
{¶10} The Supreme Court has held it is reversible error to fail to bifurcate the
adjudicatory and dispositional hearings. In Re: Baby Girl Baxter, 17 Ohio St. 3d 229,
479 N.E. 2d 257 (1985). The court explained the proceedings must be bifurcated
because the issues raised and the procedures used at each hearing differ. The issue in
the adjudicatory stage is whether the petitioner has proven by clear and convincing
evidence that the child is dependent, neglected, or abused, while the issue at the
dispositional stage involves a determination of the child’s best interest. There must be
strict adherence to the Rules of Evidence at the adjudicatory stage, but any material
Muskingum County, Case No. CT2012-0006 4
and relevant evidence, including hearsay, opinion, and documentary evidence, is
admissible at the dispositional stage pursuant to Juv. R. 34. Baxter at 260-261. The
Court of Appeals for Marion County subsequently found that another rationale for
bifurcating the hearing is to accord all persons the opportunity to present evidence on
each issue. In Re: Malone, 178 Ohio App. 3d 219, 2008-Ohio-4412, 897 N.E. 2d 672 ¶
20, citations deleted.
{¶11} At the hearing the trial court properly began by hearing appellee Children’s
Services’ evidence and testimony as to adjudication. After Children’s Services stated it
had completed its evidence for the adjudication stage, the court called a short recess.
When the court resumed, counsel for appellant asked the court to wait because one of
appellant’s witnesses had not yet returned to the courtroom. In addition, appellee’s
counsel indicated appellee had subpoenaed Dr. Howard Beazel, a psychologist who
had examined appellant. Appellee intended to present Dr. Beazel’s testimony in the
dispositional stage of the case, but during the recess the doctor had informed counsel
that he needed to conclude his testimony before noon because he had a plane to catch.
{¶12} The court inquired whether anyone had an objection to the doctor
testifying out of order and appellant’s counsel indicated appellant did object because
any testimony on the issue of disposition might taint the adjudicatory portion of the
hearing. Counsel noted the court could not include or weigh the doctor’s testimony in
the adjudicatory hearing. The court discussed with all parties the timing of the
upcoming lunch break and how the afternoon time would be spent, and eventually
appellant’s counsel withdrew his objection to the court receiving Dr. Beazel’s testimony
out of order. The doctor then testified and was cross-examined by appellant’s counsel
Muskingum County, Case No. CT2012-0006 5
as well as counsel for each child’s father and by the guardian ad litem. Then the court
excused Dr. Beazel and recessed for lunch.
{¶13} When the court returned from the lunch recess, the appellant was not
present in the courtroom. The court noted for the record appellant’s attorney had
attempted to call her on her cell phone, but it was turned off. Appellant’s attorney had
no explanation for appellant’s absence. Because appellant was the only party
remaining who had any evidence to present with regard to adjudication, the court
announced it would move to disposition with the understanding that if appellant returned
she could present any evidence as to adjudication. The court then accepted testimony
from appellee Children’s Services regarding disposition.
{¶14} After the State’s third disposition witness, counsel for appellant called
appellant’s friend to testify regarding the issue of adjudication. At some point appellant
returned to the court and also testified as to adjudication. Subsequently, appellant’s
attorney called her to testify on disposition and appellee Shawn K. called two witnesses
on behalf of his request for legal custody of his son.
{¶15} Certainly the progress of the two hearings was atypical. However, some
of the disruption was obviously caused by appellant’s failure to return promptly to the
courtroom after the lunch recess. The trial court chose to accommodate the various
witnesses and not to delay the hearings unnecessarily. After appellant’s counsel
withdrew his objection to Dr. Beazel’s testifying out of order, counsel did not object
further to the proceedings.
{¶16} In a dependency neglect or abuse case, the matter is tried to the bench
rather than to a jury. In the case of State v. Fautenberry, 72 Ohio St. 3d 435, 1995-
Muskingum County, Case No. CT2012-0006 6
Ohio-209, 650 N.E. 2d 878, the Ohio Supreme Court reviewed a capital murder case
wherein it found the admission of improper evidence was not reversible error absent an
indication that the three-judge panel was influenced by or considered inappropriate
evidence in arriving at its sentencing decision. The court reminded us that in a bench
trial in a criminal case the court is presumed to consider only relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears on the
record to the contrary. Id., at 439, citations deleted.
{¶17} Here we find the record demonstrates the court clearly understood which
evidence was offered on the issue of adjudication and which on the issue of disposition.
There is no indication in the record the court, or any party, counsel, or witness, became
confused as to the purpose for which evidence was being offered. Each time the focus
changed between adjudication and disposition, the court announced the change in
focus before receiving the evidence. None of the parties requested findings of fact and
conclusions of law, and the court made none, and there is no indication the court
considered any of the disposition evidence in adjudicating the children neglected and
dependent, and lacking adequate parental care.
{¶18} On the particular facts and circumstances of this case, we find the court
did in fact bifurcate the two hearings.
{¶19} The first assignment of error is overruled.
II.
{¶20} In her second assignment of error, appellant argues the court lacked
jurisdiction to grant legal custody to R.K.’s father and M.N.’s grandmother.
Muskingum County, Case No. CT2012-0006 7
{¶21} R.C. 2151.353 provides:
(A) If a child is adjudicated an abused, neglected, or dependent child, the
court may make any of the following orders of disposition:* * *
(3) Award legal custody of the child to either parent or to any other
person who, prior to the dispositional hearing, files a motion
requesting legal custody of the child or is identified as a proposed
legal custodian in a complaint or motion filed prior to the
dispositional hearing by any party to the proceedings. A person
identified in a complaint or motion filed by a party to the
proceedings as a proposed legal custodian shall be awarded legal
custody of the child only if the person identified signs a statement of
understanding for legal custody that contains at least the following
provisions:
(a) That it is the intent of the person to become the legal
custodian of the child and the person is able to assume legal
responsibility for the care and supervision of the child;
(b) That the person understands that legal custody of the child in
question is intended to be permanent in nature and that the
person will be responsible as the custodian for the child until the
child reaches the age of majority. Responsibility as custodian for
the child shall continue beyond the age of majority if, at the time
the child reaches the age of majority, the child is pursuing a
diploma granted by the board of education or other governing
Muskingum County, Case No. CT2012-0006 8
authority, successful completion of the curriculum of any high
school, successful completion of an individualized education
program developed for the student by any high school, or an age
and schooling certificate. Responsibility beyond the age of
majority shall terminate when the child ceases to continuously
pursue such an education, completes such an education, or is
excused from such an education under standards adopted by the
state board of education, whichever occurs first.
(c) That the parents of the child have residual parental rights,
privileges, and responsibilities, including, but not limited to, the
privilege of reasonable visitation, consent to adoption, the
privilege to determine the child's religious affiliation, and the
responsibility for support;
(d) That the person understands that the person must be present
in court for the dispositional hearing in order to affirm the person's
intention to become legal custodian, to affirm that the person
understands the effect of the custodianship before the court, and
to answer any questions that the court or any parties to the case
may have.
{¶22} Addressing first R.K. and his father, appellee father Shawn K. did not file a
motion for legal custody and did not complete a statement of understanding. We find
appellee Shawn K. was not required to do so.
Muskingum County, Case No. CT2012-0006 9
{¶23} We read the statute as providing for a grant of legal custody to either
parent, or, in the alternative, to any other person who files a motion for legal custody
and a statement of understanding.
{¶24} Furthermore, the right of a parent to the custody of his or her child is one
of the oldest fundamental liberty interests recognized by the American courts. In Re:
Thompkins, 115 Ohio St. 3d 409, 2007-Ohio- 5238, 875 N.E.2d 582, ¶10, citing Troxel
v. Grandville 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Particularly in light of
this fundamental interest, we find appellee Shawn K. was not required to file a motion in
order for the court to consider him as a potential legal custodian for his own biological
child.
{¶25} We also find appellee Shawn K. was not required to complete a statement
of understanding. The statement is intended to acknowledge and distinguish between
the rights and obligations of the legal custodian and the residual rights retained by the
parent. Further, all parties were on notice that Shawn K. was requesting custody of his
son because he and his wife participated in a home study, the results of which were
made a part of the record.
{¶26} Regarding M.N. and her grandmother, the record shows the grandmother
filed a motion for legal custody, and completed the required statement of understanding.
She was present at the dispositional hearing and testified on January 10, 2011. She
was cross examined by the guardian ad litem and by appellant’s attorney.
{¶27} The second assignment of error is overruled.
Muskingum County, Case No. CT2012-0006 10
III.
{¶28} In her third assignment of error, appellant argues the court should not
have proceeded with the hearing because the guardian ad litem failed to comply with
Sup. R. 48 requiring her to prepare a final written report to be filed with the court and
made available to the parties for inspection no less than seven days before the
dispositional hearing.
{¶29} The record indicates the guardian ad litem filed a report on September 21,
2011, six days before the hearing on the matter. No party objected to the report being
one day late. The guardian ad litem report is captioned “Initial Report”, but it is in fact
the only report filed under these case numbers by the guardian ad litem. We find the
fact it was captioned “initial” does not affect the content of the report.
{¶30} The third assignment of error is overruled.
IV.
{¶31} In her fourth assignment of error, appellant argues she did not receive the
effective assistance of trial counsel because her counsel failed to object to the
presentation of evidence regarding a civil protection order which protected appellant
from M.N’s biological father, failed to subpoena records, failed to object to legal
conclusions offered by various witnesses as to the best interest of the children, and
failed to object to Exhibit 8, for lack of proper foundation. Appellee Shawn K. was
unable to identify the exhibit, which was apparently from the school his step-children
attended. Appellant does not explain how any of the omissions could have changed the
outcome of the case.
Muskingum County, Case No. CT2012-0006 11
{¶32} To demonstrate ineffective assistance of counsel, a defendant must
satisfy both prongs of a two-prong test articulated in the case of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
defendant must show trial counsel engaged in a substantial violation of an essential
duty to his client, and secondly must show the trial counsel’s ineffectiveness resulted in
prejudice. State v. Bradley, 42 Ohio St. 3d 136, 141-142,538 N.E.2d 373(1989), citations deleted. Prejudice is demonstrated when there is a reasonable
probability that the result would have been different but for the alleged deficiencies of
counsel. Id., paragraph 3 of the syllabus. A court need not address both Strictland
prongs if the defendant fails to prove either one. State v. Ray, Ninth District No. 22459,
2005-Ohio-4941 at ¶ 10.
{¶33} Appellee Children’s Services asserts ineffective assistance of counsel is
not an appealable issue in the case because it did not seek permanent custody of the
children. Appellee argues because the matter is a legal custody matter, the appellant
retains residual parental rights, and she may ask the court to modify the custody order
at any time. In the alternative, appellee argues, even if it were an appealable issue,
appellant cannot meet the two-prong test because appellant’s counsel participated in
the trial and advocated vigorously on her behalf. We agree assuming arguendo
appellant can raise this issue, she cannot meet either prong of Strickland. The evidence
that appellant was unable to provide for her children and that the best interest of the
children lay in granting legal custody to other parties was overwhelming.
{¶34} The fourth assignment of error is overruled.
Muskingum County, Case No. CT2012-0006 12
{¶35} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division, of Muskingum County, Ohio, is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0524
[Cite as In re R.K., 2012-Ohio-2739.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: R.K. M.N. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. CT2012-0006
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, Juvenile Division, of Muskingum County, Ohio, is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE