In re J.P.B. , 2013 Ohio 787 ( 2013 )

[Cite as In re J.P.B., 2013-Ohio-787.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
IN THE MATTER OF: : Case No. 12CA34
J.P.B. :
Adjudicated Dependent Child. : DECISION AND JUDGMENT ENTRY
:
___________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Paul Giorgianni, 1538 Arlington Avenue, Columbus, Ohio
43212-2710
COUNSEL FOR APPELLEE: James E. Schneider, Washington County Prosecuting
Attorney, and Kevin A. Rings, Washington County Assistant
Prosecuting Attorney, 205 Putnam Street, Marietta, Ohio
45750
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-1-13
ABELE, J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court, Juvenile
Division, judgment that awarded Washington County Children Services (WCCS), appellee herein,
permanent custody of J.P.B. (born October 3, 2006).
{¶ 2} L.C.,1 the child’s natural father and appellant herein, assigns the following error for
review:
1
Counsel states that the father’s first initial is “E.” The trial court record and the notice of appeal that appellant filed
pro se, however, indicate that his first initial is “L.” We have used what appears to be the proper initial.
WASHINGTON, 12CA34 2
“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.”
{¶ 3} On September 3, 2009, the child entered WCCS’s temporary custody by ex parte
emergency order after WCCS became concerned that the child had suffered sexual abuse and that the
mother was mentally unstable. At the time, appellant had not been involved in the child’s life.
{¶ 4} On September 4, 2009, WCCS filed a complaint that alleged the child is a neglected,
dependent, and abused and requested temporary custody. The trial court subsequently continued its
temporary custody order pending further disposition.
{¶ 5} On November 16, 2009, the trial court adjudicated the child dependent, dismissed the
remaining allegations, and awarded WCCS temporary custody of the child.
{¶ 6} On February 23, 2011, WCCS filed a request for permanent custody. The guardian
ad litem's report recommended that the court award WCCS permanent custody. The guardian ad
litem filed another report just prior to the permanent custody hearing and again recommended that
the court award WCCS permanent custody. The guardian ad litem observed that appellant has not
visited the child on a consistent basis and did not express any interest in the child until WCCS
instituted the proceeding. The guardian ad litem further noted that appellant has a “lengthy criminal
record” and a “history of drug use.”
{¶ 7} On March 22, 2012, the trial court held a permanent custody hearing. WCCS
caseworker Amanda Herron testified that since the child’s removal, she has lived in two different
foster homes. Also, the child has been in counseling since shortly after her removal due to
exhibiting “sexually reactive behaviors.” As of March 2012, the child had “shown a tremendous
progress” and her counseling “is on an as needed basis.”
WASHINGTON, 12CA34 3
{¶ 8} Herron explained that when the child first entered WCCS’s care, “she was
overweight” and “only ate junk food, candy.” Since the child has been in WCCS’s custody she is
“healthy” and does not have any “weight issues.” Herron stated that the child is current “on her
shots,” she no longer “cuss[es] like a sailor,” and she follows directions. Herron testified that the
child is on target developmentally and “seems very stable most of the time.” Herron explained
that the child “has a strong attachment to her mother,” but the mother is “not in a permanent
placement” and the child “desperately needs that.”
{¶ 9} Herron testified that when WCCS removed the child from her mother’s care,
WCCS had little knowledge about appellant due to his lack of involvement in the child’s life.
WCCS knew that appellant “already had on his criminal record some exclusionary offenses that
according to the Ohio Revised Code and the Ohio Administrative Code, are exclusionary to child
placement.” Herron stated that WCCS discovered that appellant “is a multi-state offender. He
offended, weapon charges, domestic violence charges, drug charges, in several other states. One
of those resulted in a pretty lengthy prison sentence.”
{¶ 10} Herron stated that WCCS scheduled visits between the child and appellant and the
child “had developed at this point a cursory relationship with him. She’s not fearful of him. But
she does not appear to have a significant attachment to him.” Herron explained that appellant did
not consistently attend visitations. She stated that appellant’s overall attendance rate was
“forty-eight percent, and he’s missed a total of one hundred and fifteen visits with [the child].”
Herron further testified that when WCCS filed for permanent custody, appellant’s visitation
attendance did not increase but “[i]t has consistently gone down.” Herron testified that as of the
date of the permanent custody hearing, appellant had not visited with the child since February 8,
WASHINGTON, 12CA34 4
2012. Herron explained that appellant attended visits ninety to one hundred percent of the time
for a two- or three-month period. She stated that a ninety to one hundred percent attendance
record is what WCCS would expect from a parent who is committed to a child placement.
{¶ 11} Herron explained that WCCS started a home study for appellant and his wife, but it
was “well over a year” before WCCS completed the home study because appellant and his wife
“failed repeatedly to complete their background checks.” Herron stated: “In fact, we were lied
to, I have lost count, and didn’t document even how many times we were lied to about the fact that
they had already completed the background checks, and the results weren’t back yet.”
{¶ 12} Herron testified that she gave appellant three drug tests over an approximately
one-year period and appellant tested positive each time. Herron explained that the day before the
permanent custody hearing, she went to appellant’s home “after he had completed his probation
and all of the requirements for his most recent criminal charges, and asked if he would like to take
a drug test.” Herron testified that appellant refused and admitted that he had smoked marijuana.
{¶ 13} Herron stated that appellant did not make progress to establish himself as a
placement option: “He continued to have criminal activity throughout the case which was–there
was a directive in the case plan that said refrain from criminal activity * * * and he has failed to do
that.”
{¶ 14} Herron further explained that appellant did not refrain from drugs and alcohol and
that he did not attend drug and alcohol counseling. Herron stated that appellant informed her “that
he had been discharged [from counseling], that he didn’t need them. The report from the
counselor was very different.” Herron testified that appellant stopped attending counseling when
she requested that appellant be given a drug test at counseling.
WASHINGTON, 12CA34 5
{¶ 15} Herron stated that appellant never completed mental health services and never
attended the scheduled appointments. She explained that appellant “[w]ent for an initial
psychiatric evaluation, was diagnosed with psychosis, which is pretty severe and kind of scary,
especially when we’re looking at child placement.” Herron testified, however, that appellant “did
not comply with the medication that was prescribed and never went back to counseling.”
{¶ 16} Herron also stated that appellant failed to demonstrate any effort to comply with the
case plan requirements. She explained: “There has not been any demonstration of effort. Even
if he didn’t agree that he needed these things, compliance with them would have provided evidence
that he was at least willing to take direction, which parenting a child like [J.P.B.] would require.”
Herron testified that she would not feel comfortable allowing the child to have overnight visits in
the home. Herron further stated that appellant’s wife “has an extensive child abuse and neglect
history” and that “[s]he was a care giver or a perpetrator in many, many substantiated cases of
abuse and neglect including sexual abuse.”
{¶ 17} L&P Services medical records coordinator Marsha Sellers testified that appellant
had been scheduled for eight counseling sessions, but only attended three. Sellers stated that
according to the discharge summary, “the client did not return” after his last attendance on
February 7, 2011.
{¶ 18} WCCS professional clinical counselor Lee Ann Bates testified that she counseled
the child. Bates stated that when she first met the child, the child exhibited thirty-eight different
sexual behaviors. Bates explained “it was clinically significant that for a child that age to have
that highly developed sexual behaviors, that sexual abuse was imminent; it was current; very
recent; and it was very severe.”
WASHINGTON, 12CA34 6
{¶ 19} Marietta Municipal Court Probation Officer Eric Brockmeier testified that he had
been appellant’s probation officer. He stated that since 2009, appellant has been convicted of five
offenses in municipal court. Brockmeier later clarified, after looking at his records, that appellant
had three convictions and that two charges had been dismissed.
{¶ 20} On July 23, 2012, the trial court awarded WCCS permanent custody of the child.
The court found that appellant had no involvement with the child until WCCS filed the abuse,
neglect, and dependency complaint. The court observed that WCCS did not approve appellant for
placement because he “is a multi-state criminal offender. He has a record for weapons, domestic
violence and drugs. He has served substantial time in prison.” The court also found that
appellant “has had inconsistent visits with the child” and that although he “now has established a
relationship with his daughter[,] he has no significant attachment to the child. As of March 20,
2012, the father only attended 48% of his visits over 2 ½ years (30 months). Even, [sic] after the
filing of permanent custody, the father’s visits did not improve.” The court determined that
appellant “is not a valid placement option. The father still is engaging in criminal activity and
spent time in jail in 2012. He has not refrained from drug and alcohol use. He had a positive
drug test during the case and did not complete a psychological evaluation and required
counseling.” The court further noted that appellant’s “wife has an extensive history with Children
Services Board involving her children. She has had children removed from her care in the past.”
{¶ 21} The trial court found that when WCCS filed its permanent custody motion, the child
had been in WCCS’s temporary custody “for 17 actual months (15 under the statutory period).
Between the filing, [sic] and the date of the hearing[,] the child has continued in the temporary
custody of the Agency for another 13 months, totaling 28 months as of the date of the permanency
WASHINGTON, 12CA34 7
hearing.” The court found that “[n]one of the services provided to the parents have enabled either
to assume the role of custodian after 30 months. The child needs stability and permanency.
Neither parent can provide this.” The court thus awarded WCCS permanent custody of the child.
This appeal followed.
{¶ 22} In his sole assignment of error, appellant argues that he did not receive the effective
assistance of counsel. He contends that counsel was ineffective for failing to object to the
following instances of hearsay testimony: (1) WCCS caseworker Herron testified that “[t]he report
from [appellant’s drug and alcohol abuse counselor] was very different” from appellant’s testimony
that he had been discharged from the counseling; (2) Herron stated that appellant “was diagnosed
with psychosis, which is pretty severe and kind of scary, especially when we’re looking at child
placement”; (3) counsel’s cross-examination of Herron elicited hearsay testimony and she stated
that appellant’s wife “has an extensive child abuse and neglect history” and “was a care giver or
perpetrator in many, many substantiated cases of abuse and neglect including sexual abuse”; (4)
Marietta Municipal Court Probation Officer Erick Brockmeier testified based upon documents that
he reviewed that he “believe[d]” appellant had been convicted five times in municipal court since
2009, but after consulting his notes, he clarified that appellant had three convictions and two
charges had been dismissed; and (5) Brockmeier testified about the contents of an unspecified
“criminal history report.”
{¶ 23} The right to counsel, guaranteed in permanent custody proceedings by R.C.
2151.352 and by Juv.R. 4, includes the right to the effective assistance of counsel. In re Wingo,
143 Ohio App. 3d 652, 666, 758 N.E.2d 780 (4th Dist. 2001), citing In re Heston, 129 Ohio App. 3d
825, 827, 719 N.E.2d 93 (1st Dist. 1998). “‘Where the proceeding contemplates the loss of
WASHINGTON, 12CA34 8
parents’ ‘essential’ and ‘basic’ civil rights to raise their children, * * * the test for ineffective
assistance of counsel used in criminal cases is equally applicable to actions seeking to force the
permanent, involuntary termination of parental custody.’” Id., quoting Heston.
{¶ 24} To reverse a trial court’s judgment based upon a claim of ineffective assistance, a
defendant must show, first, that counsel’s performance was deficient and, second, that the deficient
performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Noling, 98 Ohio
St.3d 44, 65, 781 N.E.2d 88 (2002); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
Both prongs of this test need not be analyzed, however, if a claim can be resolved under one prong.
State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000); State v. Loza, 71 Ohio St. 3d 61,
83, 641 N.E.2d 1082 (1994).
{¶ 25} Counsel’s performance may be found to be deficient if counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687; Bradley, paragraph two of the syllabus (stating that
counsel’s performance is deficient if it falls below an objective standard of reasonable
representation); State v. Peeples, 94 Ohio App. 3d 34, 44, 640 N.E.2d 208 (1994) (stating that
counsel’s performance is deficient if it “raise[s] compelling questions concerning the integrity of
the adversarial process”). To establish prejudice, “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.” Bradley, paragraph two of the syllabus; Strickland, 466 U.S. at 687; Noling; Bradley,
paragraph three of the syllabus (“To show that a defendant has been prejudiced by counsel’s
deficient performance, the defendant must prove that there exists a reasonable probability that,
WASHINGTON, 12CA34 9
were it not for counsel’s errors, the result of the trial would have been different.”). When an
appellate court considers an ineffective assistance of counsel claim, the court “‘will not presume
prejudice but will require an affirmative showing thereof.’” In re Z.S., 4th Dist. No. 10CA16,
2010–Ohio–5038, ¶35, quoting Matter of Shelton, 4th Dist. No. 818 (Mar. 16, 1993).
{¶ 26} In the case at bar, even if we assume for the sake of argument that trial counsel
performed deficiently by failing to object to the alleged hearsay testimony, appellant has failed to
establish that any such deficiency prejudiced his case. Even if counsel had objected to each
instance of the alleged hearsay testimony, and even if the trial court had sustained them, as we
explain below, the transcript from the permanent custody hearing contains ample clear and
convincing evidence that the custody award to WCCS is in the child’s best interests.
A
STANDARD OF REVIEW
{¶ 27} Generally, an appellate court will not reverse a trial court’s permanent custody
decision if some competent and credible evidence supports the judgment. In re Perry, 4th Dist.
Nos. 06CA648 and 06CA649, 2006–Ohio–6128, ¶40, citing State v. Schiebel, 55 Ohio St. 3d 71,
74, 564 N.E.2d 54 (1990). Thus, our review of a trial court’s permanent custody decision is
deferential. In re Hilyard, 4th Dist. Nos. 05CA600, 05CA601, 05CA602, 05CA603, 05CA604,
05CA606, 05CA607, 05CA608, 05CA609, ¶17, 2006–Ohio–1965. Moreover, “an appellate court
should not substitute its judgment for that of the trial court when there exists competent and
credible evidence supporting the findings of fact and conclusion of law.” Schiebel, 55 Ohio St. 3d
at 74. Issues relating to the credibility of witnesses and the weight to be given the evidence are
primarily for the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio
WASHINGTON, 12CA34 10
St.3d 77, 80, 461 N.E.2d 1273 (1984): “The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that the trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” Moreover, deferring to the trial court on
matters of credibility is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well (Emphasis sic).” Davis v.
Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997). Accord In re Christian, 4th Dist.
No. 04CA10, 2004–Ohio–3146, ¶7.
B
STANDARD FOR GRANTING PERMANENT CUSTODY
{¶ 28} A trial court may not grant a permanent custody motion absent clear and convincing
evidence to support the judgment. “Clear and convincing evidence” means:
“The measure or degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the allegations sought to be established. It is
intermediate, being more than a mere preponderance, but not to the extent of such
certainty as required beyond a reasonable doubt as in criminal cases. It does not
mean clear and unequivocal.”
In re Estate of Haynes, 25 Ohio St. 3d 101, 103–04, 495 N.E.2d 23 (1986). Accord Schiebel, 55
Ohio St. 3d at 74. In reviewing whether a trial court based its decision upon clear and convincing
evidence, “a reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Schiebel, 55 Ohio St. 3d at
74.
C
PERMANENT CUSTODY PRINCIPLES
WASHINGTON, 12CA34 11
{¶ 29} A parent has a “fundamental liberty interest” in the care, custody, and management
of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky
v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Murray, 52 Ohio St. 3d
155, 157, 556 N.E.2d 1169 (1990). Accord In re D.A., 113 Ohio St. 3d 88, 2007–Ohio–1105, 862
N.E.2d 829, ¶9. A parent’s rights, however, are not absolute. D.A. at ¶11. Rather, “‘it is plain
that the natural rights of a parent * * * are always subject to the ultimate welfare of the child,
which is the polestar or controlling principle to be observed.’” In re Cunningham, 59 Ohio St. 2d
100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So. 2d 54, 58 (Fla.App.1974). Thus,
the state may terminate parental rights when a child’s best interest demands such termination.
D.A. at ¶11.
{¶ 30} Before a court may award a children services agency permanent custody of a child,
R.C. 2151.414(A)(1) requires the court to hold a hearing. The primary purpose of the hearing is to
allow the court to determine whether the child’s best interests would be served by permanently
terminating the parental relationship and by awarding permanent custody to the agency. R.C.
2151.414(A)(1). Additionally, when considering whether to grant a children services agency
permanent custody, a trial court should consider the underlying principles of R.C. Chapter 2151.01:
(A) To provide for the care, protection, and mental and physical
development of children * * *;
***
(B) To achieve the foregoing purpose[ ], whenever possible, in a family
environment, separating the child from its parents only when necessary for his
welfare or in the interests of public safety.
D
PERMANENT CUSTODY FRAMEWORK
WASHINGTON, 12CA34 12
{¶ 31} R.C. 2151.414(B) allows a trial court to award a children services agency permanent
custody of a child if clear and convincing evidence demonstrates that granting permanent custody
would serve the child’s best interests and that at least one of the following factors exists:
(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.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able
to take permanent custody.
(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 2151.413 of the Revised Code,
the child was previously in the temporary custody of an equivalent agency in
another state.
For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the earlier of the
date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the
date that is sixty days after the removal of the child from home.
{¶ 32} Thus, before a trial court may award a children services agency permanent custody,
it must find: (1) that one of the circumstances described in R.C. 2151.414(B)(1) applies; and (2)
that awarding the children services agency permanent custody would further the child’s best
interests.
{¶ 33} We further observe that the statute requires the trial court to find the existence of
only one of the R.C. 2151.414(B)(1) factors. In re W.W., 1st Dist. Nos. C–110363 and C–110402,
WASHINGTON, 12CA34 13
2011–Ohio–4912, ¶54 (observing that if one of R.C. 2151.414(B)(1) factors exists, court need not
find that other (B)(1) factors apply). If the court finds that R.C. 2151.414(B)(1)(d) applies, then it
need not also find that (1) the child cannot or should not be placed with either parent within a
reasonable time, (2) the child is abandoned, or (3) the child is orphaned. Consequently, when
considering a R.C. 2151.414(B)(1)(d) permanent custody motion, the only other consideration
becomes the child’s best interests. E.g., In re T.F., 4th Dist. No. 07CA34, 2008–Ohio–1238, ¶23;
In re Williams, 10th Dist. No. 02AP–924, 2002–Ohio–7205, ¶47; In re Dyal, 4th Dist. No. 01CA11
(Aug. 9, 2001).
E
BEST INTERESTS
{¶ 34} R.C. 2151.414(D) requires a trial court to consider specific factors to determine
whether a child’s best interests will be served by granting a children services agency permanent
custody. The factors include: (1) the interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster parents and out-of-home providers, and any other person who
may significantly affect the child; (2) 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; (3) the
custodial history of the child; (4) 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; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.2
2
R.C. 2151.414(E)(7) to (11) provide as follows:
(7) The parent has been convicted of or pleaded guilty to one of the following:
(a) An offense under section 2903.01, 2903.02, or 2903.03 of the Revised Code or under an
WASHINGTON, 12CA34 14
{¶ 35} In the case at bar, we do not believe that the trial court would have reached a
different decision if trial counsel had objected to the alleged hearsay testimony. Even without the
alleged hearsay, the trial court’s judgment to award appellee permanent custody is not against the
manifest weight of the evidence. Clear and convincing evidence supports the trial court’s finding
existing or former law of this state, any other state, or the United States that is substantially equivalent to an
offense described in those sections and the victim of the offense was a sibling of the child or the victim was
another child who lived in the parent’s household at the time of the offense;
(b) An offense under section 2903.11, 2903.12, or 2903.13 of the Revised Code or under an
existing or former law of this state, any other state, or the United States that is substantially equivalent to an
offense described in those sections and the victim of the offense is the child, a sibling of the child, or another
child who lived in the parent’s household at the time of the offense;
(c) An offense under division (B)(2) of section 2919.22 of the Revised Code or under an existing or former
law of this state, any other state, or the United States that is substantially equivalent to the offense
described in that section and the child, a sibling of the child, or another child who lived in the parent's
household at the time of the offense is the victim of the offense;
(d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.06 of the Revised
Code or under an existing or former law of this state, any other state, or the United States requiring
treatment of the parent was journalized as part of a dispositional order issued with respect to the child or an
order was issued by any other court requiring treatment of the parent.
(e) A conspiracy or attempt to commit, or complicity in committing, an offense described in
division (E)(7)(a) or (d) of this section.
(8) The parent has repeatedly withheld medical treatment or food from the child when the parent
has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent
withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual
means through prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or
drug abuse and has rejected treatment two or more times or refused to participate in further treatment two
or more times after a case plan issued pursuant to section 2151.412 [2151.41.2] of the Revised Code.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated pursuant to this section or
section 2151.353 [2151.35.3] or 2151.415 [2151.41.5] of the Revised Code with respect to a sibling of the
child. that is substantially equivalent to an offense described in those sections and the victim of the offense
is the child, a sibling of the child, or another child who lived in the parent’s household at the time of the
offense[.]
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under R.C. 2151.414(B)(1)(d) that the child has been in appellee's custody for twelve or more
months of a consecutive twenty-two month period. The court adjudicated the child dependent on
November 16, 2009. The court awarded appellee temporary custody on September 3, 2009.
Thus, for purposes of R.C. 2151.414(B)(1)(d), the child entered appellee’s temporary custody on
the date that is sixty days following the child’s removal, which would be November 3, 2009.
When appellee filed its February 23, 2011 permanent custody motion, the child had been in its
custody for over fifteen months.
{¶ 36} Moreover, clear and convincing evidence supports the trial court’s finding that
awarding appellee permanent custody will serve the child’s best interest. Regarding the first
factor, the child’s interactions and interrelationships, the evidence shows that the child established
a relationship with appellant in 2009, after WCCS became involved. Prior to that time, appellant
had no significant contact with the child. During the time that the child has been in WCCS’s
temporary custody, appellant has exercised visitation–albeit inconsistently–with the child and has
developed an apparently superficial relationship with her. While no one reported any
inappropriate behavior between appellant and the child, the WCCS caseworker did not observe the
child display any significant attachment to appellant. Moreover, the evidence shows that appellant
lacked a consistent commitment to his child. WCCS caseworker Herron stated that appellant
attended only forty-eight percent of the scheduled visits and that she would expect closer to a
ninety percent compliance rate if a parent sincerely desired to establish or re-establish a bond with
a child.
{¶ 37} With respect to the second factor, the child’s wishes, the guardian ad litem
recommended that the court award appellee permanent custody.
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{¶ 38} Regarding the third factor, the child’s custodial history, the evidence shows that the
child lived with her mother until the child was approximately three years old, at which point she
entered WCCS’s temporary custody. She has since remained in WCCS’s temporary custody and
is now over six years old. Thus, she has been out of her mother’s care for over one-half of her
life. Appellant never had custody of the child.
{¶ 39} With respect to the fourth factor, the child’s need for a legally secure permanent
placement, the testimony from the permanent custody hearing demonstrates that the child’s mother
has been unable to provide a legally secure permanent home for the child. Appellee presented
evidence that appellant was unable to demonstrate a consistent ability to comply with the case plan
so as to ensure that he could provide his daughter with a safe, stable, and permanent home in which
she could thrive and in which she would be able to receive appropriate care to enable her to address
her prior sexual abuse and her sometimes inappropriate sexual behaviors. The child has been in
limbo for over three years now and the testimony shows that the child displays inappropriate sexual
behaviors when stressed. Nothing could be more stressful for a young child than to be in a
constant state of insecurity as to where her next home will be. This child definitely needs stability
in order to allow her to heal from her prior sexual abuse and to receive adequate care and
counseling as she ages so that she has a chance at a normal life free from inappropriate sexual
behaviors. The child’s counselor stated that the child is a special needs child, in a sense, due to
her prior sexual abuse and she has fears of regression if the child is not afforded a stable, safe, and
permanent home.
{¶ 40} While appellant may believe that he is able to provide a stable and permanent home
for his child, he was released from jail only days before the permanent custody hearing. It is
WASHINGTON, 12CA34 17
difficult to imagine how appellant could provide the child a stable and permanent home under
these circumstances.
{¶ 41} Furthermore, appellant has demonstrated that he is unable to refrain from using
marijuana, despite WCCS’s request that he do so if he sincerely wished to have custody of the
child. Appellant even admitted that he had used marijuana the day before the permanent custody
hearing. Appellant’s conduct suggests that he places a higher value on recreational illegal drug
use than the custody of his child. A parent who truly desires custody of his or her child would, we
believe, make every effort to comply with a children services agency’s request to refrain from
illegal drug use. We find it impossible to believe that a parent who truly desires custody of his or
her child would continue to abuse marijuana in the face of warnings that such abuse could lead to
the termination of his or her parental rights. If appellant had a serious desire to obtain custody of
his child, then one would have expected him to comply with all case plan requirements.
{¶ 42} As we have recognized time and again, a trial court is not required to experiment
with a child’s welfare in order to permit a parent to prove his or her suitability:
“‘”* * * [A] child should not have to endure the inevitable to its great
detriment and harm in order to give the * * * [parent] an opportunity to prove her
suitability. To anticipate the future, however, is at most, a difficult basis for a
judicial determination. The child’s present condition and environment is the
subject for decision not the expected or anticipated behavior of unsuitability or
unfitness of the * * * [parent]. * * * The law does not require the court to
experiment with the child’s welfare to see if he will suffer great detriment or
harm.”’”
In re A.C.H., 4th Dist. No. 11CA2, 2011-Ohio-5595, ¶42, quoting In re Bishop, 36 Ohio App. 3d
123, 126, 521 N.E.2d 838 (1987), quoting In re East, 32 Ohio Misc. 65, 69, 288 N.E.2d 343
(1972). Appellant had over two years to demonstrate to WCCS that he could provide a stable and
WASHINGTON, 12CA34 18
permanent home and would be a suitable parent for the child. During that two-year period, he
repeatedly used marijuana and missed visitations with the child. He failed to timely fulfill
WCCS’s request for a background check and outright lied to the caseworker. In sum, appellant
failed to show that he could dedicate himself to the child’s best interests. We cannot fault the trial
court for deciding not to experiment with this fragile child in order to provide appellant an
opportunity to prove his ability to give her proper care, stability, support, and permanency.
{¶ 43} Thus, because appellant could not or would not complete the case plan
requirements, appellant is unable to provide the child with a legally secure permanent placement.
The evidence also shows that neither the child’s mother nor any suitable relative can provide a
legally secure permanent placement. Consequently, awarding WCCS permanent custody will
satisfy the child’s need for a legally secure permanent placement.
{¶ 44} The foregoing evidence does not rest upon the alleged hearsay testimony of which
appellant complains. The trial court made no mention of appellant’s apparent psychosis. To the
extent that the court improperly cited appellant’s current wife’s prior experience with children
services in its decision, we cannot state that the trial court would have reached a different decision
if it had ignored appellant’s wife’s prior experience.
{¶ 45} Additionally, we observe that at least some of the evidence of which appellant
complains is cumulative to other evidence. For example, appellant complains that the probation
officer testified regarding his prior misdemeanor convictions. WCCS caseworker Herron,
however, also relayed that appellant had an extensive criminal history that spanned multiple states.
Appellant also complains that Herron testified about his discharge from alcohol and drug abuse
counseling and that appellant’s story was “very different” from his counselor’s. Other evidence
WASHINGTON, 12CA34 19
amply shows, however, that appellant did not complete drug and alcohol abuse counseling. His
counselor testified that he did not attend all sessions and was discharged from the program due to
his failure to attend.
{¶ 46} Thus, even without the alleged hearsay, more than ample competent and credible
supports the trial court’s decision to award WCCS permanent custody. Consequently, appellant
cannot establish that any alleged deficiency in counsel’s failure to object to hearsay affected the
outcome of the proceedings.
{¶ 47} Accordingly, based upon the foregoing reasons, we overrule appellant’s sole
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County
Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
WASHINGTON, 12CA34 20
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.