In re T.B. ( 2022 )

[Cite as In re T.B., 2022-Ohio-4734.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
In the Matter of: :
: Case No. 22CA15
T.B. :
:
Adjudicated Dependent Child. :
:
: DECISION AND JUDGMENT
: ENTRY
:
: RELEASED: 12/20/2022
APPEARANCES:
Brian A. Smith, Fairlawn, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecutor, and Jennifer L. Ater, Ross County
Assistant Prosecutor, Chillicothe, Ohio, for Appellee.
Wilkin, J.
{¶1} Appellant, the minor child’s father, appeals a decision of the Ross
County Court of Common Pleas, Juvenile Division, that placed his biological
child, T.B., in the permanent custody of South Central Ohio Job and Family
Services, Children’s Division (“the agency”).
{¶2} Appellant raises four assignments of error. First, he argues that the
trial court’s permanent custody decision is void, because he was not properly
served with notice of the motion and of the hearing. Second, Appellant claims
that trial counsel rendered ineffective assistance of counsel by failing to object to
the alleged lack of proper service. Third, Appellant asserts that the trial court’s
permanent custody decision is against the manifest weight of the evidence,
because the evidence fails to support the court’s finding that placing the child in
Ross App. No. 22CA15 2
the agency’s permanent custody is in the child’s best interest. Last, Appellant
contends that the trial court’s permanent custody decision is against the manifest
weight of the evidence, because the record fails to show that the agency used
reasonable efforts to reunify the family.
{¶3} After our review of the record and the applicable law, we do not find
any merit to Appellant’s assignments of error. Therefore, we affirm the trial
court’s judgment.
FACTS AND PROCEDURAL BACKGROUND
{¶4} On February 10, 2020, the agency filed a complaint that alleged the
nearly three-year-old child is a dependent child and requested the court to grant
the agency temporary custody of the child. The attached statement of facts
indicated the following.
{¶5} The agency first became involved with the family in early June 2017,
shortly after the child’s birth. The agency learned that the child’s “cord stat result
returned positive on [June 5, 2017] for Subutex and cocaine.” The report stated
that the child’s mother had been receiving Subutex services during her
pregnancy but was discharged for testing positive for cocaine.
{¶6} A caseworker phoned the parents’ home on August 9, 2017, and
heard the parents yelling. The caseworker called the Chillicothe Police
Department to report the disturbance. After the police left the parents’ home,
Appellant informed the caseworker that the mother “left the residence out of a
window of the home before police arrived.” Appellant advised the caseworker
“that he was not able to ensure [the mother] would not bring drug instruments
Ross App. No. 22CA15 3
into the home, or that he could stop the drug activity, dealers, and other users
from coming into the home.” He further stated that “working full time and
providing care to [the child] was too difficult to him.” Shortly thereafter, the
agency sought and received temporary custody of the child.
{¶7} Over the next couple of years, the agency worked with the parents in
an attempt to reunify the family. The parents, however, did not consistently visit
the child or comply with the case plan requirements. The agency eventually
dismissed the original complaint and refiled the present action.
{¶8} On February 12, 2020, the father appeared with counsel for a
hearing. At this hearing, the father denied the allegations of the complaint. The
court found that the agency had used reasonable efforts to prevent the child’s
continued removal from the home. The court continued the child in the agency’s
temporary custody.
{¶9} On July 29, 2020, the magistrate adjudicated the child a dependent
child. The court found that the agency used reasonable efforts. On that same
date, the trial court adopted the magistrate’s decision and adjudicated the child a
dependent child. The court later entered a dispositional order that continued the
child in the agency’s temporary custody.
{¶10} On February 8, 2022, the agency filed a permanent custody motion.
The agency alleged that the child has been in its temporary custody for 12 or
more months of a consecutive 22-month period and that placing the child in its
permanent custody is in his best interest. The agency requested that both
parents be served via personal service.
Ross App. No. 22CA15 4
{¶11} About one month later, the trial court held a pretrial hearing and
noted that Appellant’s counsel appeared, but Appellant did not. The court further
observed that the record did not indicate that the parents had been served with
notice of the permanent custody motion and of the hearing date. The court thus
ordered the agency to verify that the parents have been served or to issue new
instructions for service.
{¶12} On March 15, 2022, the agency filed a motion to serve the parents
by posting and by mail. The affidavit stated that the summons could not be
served upon the parents because their residence is “unknown.” The affidavit
listed the parents’ last known address and stated that reasonable efforts (a public
records search) were undertaken to determine the parents’ residence.
{¶13} On April 11, 2022, the court held a hearing to consider the agency’s
permanent custody motion. The court noted that neither parent was present but
that an attorney represented each. Caseworker Sarah Swenson testified that the
agency’s concerns included the parents’ lack of appropriate housing and lack of
employment, and the mother’s drug addiction. Additionally, Appellant did not
have reliable transportation and had “explosive angry outbursts in front of the
child.”
{¶14} Swenson explained that the case plan required the mother to
continue receiving treatment for her drug addiction and required the parents to
maintain safe and stable housing, to attend regular visitation with the child, and
to engage in a mental health evaluation and follow any recommended treatment.
Swenson testified that the parents did not establish stable housing, did not
Ross App. No. 22CA15 5
consistently visit the child, and Appellant did not successfully complete
recommended counseling for his anger issues.
{¶15} Swenson stated that the parents “were very inconsistent” in their
visits with the child. Swenson reported that in June 2021, the parents “had a
hard time keeping appointments.” She explained that the parents claimed not to
have transportation, or they complained about the weather or the time scheduled
for the visits. Swenson stated that the agency moved the visits to a more
accommodating time for the parents, yet the parents still did not consistently visit
the child. Around August 2021, the parents’ visits became even less consistent,
and they “stopped showing up almost completely.” Furthermore, during visits,
Appellant “tended to yell in front of [the child] and scare him” and was
confrontational with the foster parents.
{¶16} Swenson stated that the child has been in the agency’s temporary
custody since he was a few months old and that he has remained in the same
foster home throughout that time. Swenson reported that the child is “very
comfortable,” “very well adjusted,” and “very bonded” with the foster family. She
further explained that due to Appellant’s violent behaviors, the child was referred
for counseling.
{¶17} Caseworker Nathan Winston stated that he is the current
caseworker for the family. Winston testified that the parents have not completed
the case plan goals. Winston reported that neither parent visited the child
between August 2021 and early December 2021. Appellant attended a visit on
December 7, 2021, but he has not seen the child since that time. The mother
Ross App. No. 22CA15 6
last visited the child in August 2021. Winston also stated that the parents have
not established stable housing and that Appellant has not resolved his anger
issues. Winston indicated that the child is “very bonded” with the foster family
and “has a strong love for them.”
{¶18} On April 13, 2022, the trial court granted the agency permanent
custody of the child. The court found that all parties were properly notified of the
hearing. The court determined that the child cannot be placed with either parent
within a reasonable time or should not be placed with them and that placing the
child in the agency’s permanent custody is in the child’s best interest. The court
additionally found that the child has been in the agency’s temporary custody for
12 or more months of a consecutive 22-month period and “has essentially been”
in the agency’s temporary custody “since a few days after he was born.” The
court observed that the child shares a strong bond with the foster parents and is
doing well in their care.
{¶19} The court stated that the parents did not complete “significant
portions of the case plan.” The mother has been unable to overcome her drug
addiction, is on felony probation, and has a bench warrant for her arrest.
Appellant did not consistently visit the child and has not seen the child since
December 7, 2021. During visits, Appellant “was often confrontational with the
foster parents and acted in an aggressive manner.” Furthermore, Appellant’s
“outbursts have frightened the child.” Appellant “was referred to counseling to
address his outbursts but he has failed to follow through with that counseling
referral.”
Ross App. No. 22CA15 7
{¶20} The court also noted that Appellant “has not consistently remained
in contact with his case workers” and that the “parents have not maintained
stable housing.” Moreover, the parents have a history of domestic violence, and
they have not adequately addressed the concerns. The court determined that
the child needs a permanent placement and cannot achieve that type of
placement without granting the agency permanent custody of the child. The
court thus granted the agency permanent custody of the child. This appeal
followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT DECISION GRANTING APPELLEE’S
MOTION FOR PERMANENT CUSTODY WAS VOID, BECAUSE IT
DENIED DUE PROCESS TO APPELLANT DUE TO
INSUFFICIENT SERVICE, IN VIOLATION OF APPELLANT’S
RIGHT TO DUE PROCESS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.
II. THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO OBJECT
TO THE TRIAL COURT’S IMPROPER SERVICE AND LACK OF
JURISDICTION OVER APPELLANT CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL AND VIOLATED
APPELLANT’S RIGHTS TO COUNSEL AND DUE PROCESS
UNDER ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
III. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S
MOTION FOR PERMANENT CUSTODY, WAS AGAINST THE
MANFEST WEIGHT OF THE EVIDENCE.
IV. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S
MOTION FOR PERMANENT CUSTODY, WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, BECAUSE APPELLEE
DID NOT SHOW THAT IT HAD MADE “REASONABLE EFFORTS”
TO REUNITE THE FAMILY PURSUANT TO R.C. 2151.419.
Ross App. No. 22CA15 8
ANALYSIS
FIRST ASSIGNMENT OF ERROR
{¶21} In his first assignment of error, Appellant argues that the trial court’s
permanent custody decision is void because he was not properly served with the
agency’s permanent custody motion or notice of the hearing date. Specifically,
he contends that the agency failed to establish that serving him with notice by
publication was necessary. Appellant alleges that the agency incorrectly claimed
that the agency could not ascertain his address. Appellant asserts that he had
maintained the same address since the inception of the case and that the
complaint had been served upon him at this address. He also argues that the
clerk’s office should not have sent notice via regular mail, but instead, should
have sent notice via certified mail.
{¶22} The Due Process Clause of the Fifth Amendment to the United
States Constitution, as applicable to the states through the Fourteenth
Amendment, provides: “No person shall * * * be deprived of life, liberty, or
property, without due process of law.” “[P]arents’ interest in the care, custody,
and control of their children ‘is perhaps the oldest of the fundamental liberty
interests recognized by this Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-
4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120
S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one’s “child is an
‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 157, 556
N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d
Ross App. No. 22CA15 9
599 (1982) (stating that “natural parents have a fundamental right to the care and
custody of their children”). Thus, “parents who are ‘suitable’ have a ‘paramount’
right to the custody of their children.” B.C. at ¶ 19, quoting In re Perales, 52 Ohio
St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio St. 299, 310
(1877); Murray, 52 Ohio St.3d at 157.
{¶23} Additionally, the Ohio Supreme Court has described the permanent
termination of parental rights as “ ‘the family law equivalent of the death penalty
in a criminal case.’ ” Hayes, 79 Ohio St.3d at 48, quoting In re Smith, 77 Ohio
App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Consequently, courts must afford
parents facing the permanent termination of their parental rights “ ‘every
procedural and substantive protection the law allows.’ ” Id., quoting Smith at 16;
accord B.C. at ¶ 19. Thus, because parents possess a fundamental liberty
interest in the care and custody of their children, the state may not deprive
parents of their parental rights without due process of law. In re James, 113
Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, ¶ 16; e.g., In re A.G., 4th Dist.
Athens No. 14CA28, 2014-Ohio-5014, ¶ 12; In re M.H., 4th Dist. Vinton No.
11CA683, 2011-Ohio-5140, ¶¶ 49–50. Moreover, a parent’s right to due process
“does not evaporate simply because” that parent has “not been [a] model parent[
] or [has] lost temporary custody of their child to the State.” Santosky, 455 U.S.
at 753.
{¶24} Although “due process” lacks precise definition, courts have long
held that due process requires both notice and an opportunity to be heard. In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, ¶ 12, citing
Ross App. No. 22CA15 10
Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 28 L.Ed.
569 (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348, 31 N.E. 602 (1892). “An
elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.” Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); accord
In re Thompkins at ¶ 13.
{¶25} Moreover, given the importance of the parent-child bond, “a Juvenile
Court cannot make a valid order changing temporary commitment of a
dependent child to a permanent one without a service of notice upon the parent
of the child, strictly in accordance with the law.” In re Frinzl, 152 Ohio St. 164,
173, 87 N.E.2d 583 (1949); accord In re S.S., 9th Dist. Wayne No. 10CA0010,
2010-Ohio-6374, ¶ 43, quoting In re Cowling, 72 Ohio App.3d 499, 500–501, 595
N.E.2d 470 (9th Dist.1991). “ ‘[A] judgment rendered without proper service or
entry of appearance is a nullity and void.’ ” State ex rel. Ballard v. O’Donnell, 50
Ohio St.3d 182, 183–184, 553 N.E.2d 650 (1990), quoting Lincoln Tavern, Inc. v.
Snader, 165 Ohio St. 61, 64, 133 N.E.2d 606 (1956). Thus, “a valid court
judgment requires both proper service under the applicable Ohio rules and
adequate notice under the Due Process Clause.” In re A.G., 4th Dist. Athens No.
14CA28, 2014-Ohio-5014, ¶ 14, citing Samson Sales, Inc. v. Honeywell, Inc., 66
Ohio St.2d 290, 293, 421 N.E.2d 522 (1981).
Ross App. No. 22CA15 11
{¶26} When, however, “parents of minor children have the notice and
opportunity to assert their rights in a permanent-custody proceeding,” no due
process violation occurs. Ross v. Saros, 99 Ohio St.3d 412, 2003-Ohio-4128,
792 N.E.2d 1126, ¶ 17. Accordingly, “a notice issue may be waived on appeal
when a parent’s attorney is present for various permanent custody hearings and
does not raise the improper notice issue.” In re C.B., 2020-Ohio-5151, 161
N.E.3d 770, ¶ 19 (4th Dist.).
{¶27} When the state seeks to interfere with a parent’s liberty interest in
the care, custody, and management of his or her child, the Due Process Clause
requires the state to “attempt to provide actual notice” to the parents. Thompkins
at ¶ 14 (emphasis sic.), citing Dusenbery v. United States, 534 U.S. 161, 170,
122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Due process does not, however, require
the state to undertake “ ‘heroic efforts’ ” to provide actual notice. Id., quoting
Dusenbery, 534 U.S. at 170. Additionally, due process does not require that a
parent receives actual notice before the state may permanently sever the parent-
child relationship. Id. Instead, the state satisfies its due process obligation to
provide notice and an opportunity to be heard if the state employs means that are
“reasonably calculated” to inform the parent of the proceeding involving his or her
child. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 64.
Furthermore, the state must exercise “reasonable diligence in attempting to notify
[parents] that [their] parental rights [are] subject to termination.” Thompkins at ¶
15; accord In re S.S., 9th Dist. Wayne No. 10CA0010, 2010-Ohio-6374, ¶ 49.
Ross App. No. 22CA15 12
{¶28} R.C. 2151.29 sets forth the requirements for serving notice of a
permanent custody motion and of the hearing. See R.C. 2151.414(A)(1) (stating
that “the court shall schedule a hearing and give notice of the filing of the motion
and of the hearing, in accordance with” R.C. 2151.29). The statute provides as
follows:
Service of summons, notices, and subpoenas, prescribed by
section 2151.28 of the Revised Code, shall be made by delivering a
copy to the person summoned, notified, or subpoenaed, or by leaving
a copy at the person’s usual place of residence. If the juvenile judge
is satisfied that such service is impracticable, the juvenile judge may
order service by registered or certified mail. If the person to be
served is without the state but the person can be found or the
person’s address is known, or the person’s whereabouts or address
can with reasonable diligence be ascertained, service of the
summons may be made by delivering a copy to the person personally
or mailing a copy to the person by registered or certified mail.
Whenever it appears by affidavit that after reasonable effort
the person to be served with summons cannot be found or the
person’s post-office address ascertained, whether the person is
within or without a state, the clerk shall publish such summons once
in a newspaper of general circulation throughout the county. The
summons shall state the substance and the time and place of the
hearing, which shall be held at least one week later than the date of
the publication. A copy of the summons and the complaint,
indictment, or information shall be sent by registered or certified mail
to the last known address of the person summoned unless it is shown
by affidavit that a reasonable effort has been made, without success,
to obtain such address.
A copy of the advertisement, the summons, and the
complaint, indictment, or information, accompanied by the certificate
of the clerk that such publication has been made and that the
summons and the complaint, indictment, or information have been
mailed as required by this section, is sufficient evidence of
publication and mailing. When a period of one week from the time
of publication has elapsed, the juvenile court shall have full
jurisdiction to deal with such child as provided by sections 2151.01
to 2151.99 of the Revised Code.
Ross App. No. 22CA15 13
{¶29} In the case before us, Appellant claims that service by publication
was improper because the agency could have ascertained his address. He
states that he had maintained the same address at which the agency previously
had served him and that the agency thus should have attempted to serve him at
this address. We observe, however, that on February 8, 2022, the agency did
request personal service be made upon Appellant at this address.
{¶30} Moreover, about one month later, the trial court noted that the
record did not indicate that the parents had been served with notice of the motion
and hearing date.1 The court thus ordered the agency to verify that the parents
have been served or to issue new instructions for service.
{¶31} One week later, the agency filed a motion to serve the parents by
posting and by mail. The agency submitted an affidavit for publication by posting
and mail that contained the parents’ last known address, that stated the agency
had used reasonable efforts to determine the parents’ residence by conducting a
public records search, and that averred that the parents’ residence could not be
ascertained with reasonable diligence. The trial court granted the agency’s
motion.
{¶32} Here, the agency first attempted to personally serve Appellant with
notice of the motion and hearing at the same address that Appellant had
maintained throughout the pendency of the case. After about one month, the
agency still had not successfully personally served Appellant. The agency then
1 On February 14, 2022, the Sheriff’s Returns were filed with the court, but they are blank; none of
the information was completed on the form to indicate whether service had or had not been
made.
Ross App. No. 22CA15 14
requested the clerk’s office to serve Appellant by posting and by ordinary mail,
which the clerk’s office did.
{¶33} Appellant contends, however, that the clerk also should have sent
notice via certified mail to his last known address and that the failure to do so
shows that service by publication was not properly made upon him. Yet at no
point did Appellant’s counsel, who appeared at both the pretrial and the
permanent custody hearing, assert that the attempt to serve Appellant was
invalid. Instead, Appellant’s counsel appeared at the permanent custody hearing
and did not argue that service was defective. Therefore, Appellant waived the
issue for purposes of appeal. In re D.H., 177 Ohio App.3d 246, 2008-Ohio-3686,
894 N.E.2d 364 (8th Dist.), ¶ 38 (stating that the “issue of notice is waived on
appeal when the parent’s attorney is present for various permanent custody
hearings and never argues improper notice”); Matter of Jennifer L., 6th Dist.
Lucas No. L-97-1295, 1998 WL 230808, *3 (May 1, 1998) (determining that
father waived argument that trial court lacked personal jurisdiction “when counsel
who appeared on his behalf at the permanent custody hearings did not argue
that the trial court had no jurisdiction to consider a motion for permanent custody
against him”); see State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162
N.E.3d 776, ¶ 36 (stating that a person “submits to the court’s jurisdiction if he
does not object to the court’s exercise of jurisdiction over him”); Gliozzo v. Univ.
Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d
714, ¶ 13 (stating that a party voluntarily submits to a court’s jurisdiction “by
failing to raise the defense of insufficiency of service of process in a responsive
Ross App. No. 22CA15 15
pleading or by filing certain motions before any pleading”). We additionally point
out that when the agency filed its permanent custody motion, Appellant’s child
had been in the agency’s temporary custody for about four and a half years.
Thus, Appellant’s claim that he did not have adequate notice of the proceedings
rings especially hollow. Consequently, we do not agree with Appellant that the
trial court’s permanent custody decision is void.
{¶34} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s first assignment of error.
SECOND ASSIGNMENT OF ERROR
{¶35} In his second assignment of error, Appellant asserts that his trial
counsel was ineffective for failing to object to the allegedly improper service.
Appellant claims that if trial counsel had raised the issue, then “the trial court
would not have granted permanent custody to [the agency], and [Appellant]’s
parental rights would not have been terminated.”
{¶36} 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); e.g., In re J.P.B., 4th Dist. Washington No. 12CA34, 2013-Ohio-787,
¶ 23; In re K.M.D., 4th Dist. Ross No. 11CA3289, 2012-Ohio-755, ¶ 60; In re
A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 50. “ ‘Where the
proceeding contemplates the loss of parents’ ‘essential’ and ‘basic’ civil rights to
raise their children, * * * the test for ineffective assistance of counsel used in
Ross App. No. 22CA15 16
criminal cases is equally applicable to actions seeking to force the permanent,
involuntary termination of parental custody.’ ” Wingo, 143 Ohio App.3d at 666,
quoting Heston.
{¶37} “To establish constitutionally ineffective assistance of counsel, a
defendant must show (1) that his counsel’s performance was deficient and (2)
that the deficient performance prejudiced the defense and deprived him of a fair
trial.” State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15,
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865, ¶ 85. “Failure to establish either element is fatal to the claim.” State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
{¶38} “ ‘In order to show deficient performance, the defendant must prove
that counsel’s performance fell below an objective level of reasonable
representation.’ ” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155 ¶ 89 (4th
Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 95. When considering counsel’s performance, “ ‘a court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington
Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 23, quoting Strickland, 466 U.S. at
689. “Thus, ‘the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.’
” State v. Jarrell, 2017-Ohio-520, 85 N.E.3d 175, ¶ 49 (4th Dist.),
quoting Strickland, 466 U.S. at 689.
Ross App. No. 22CA15 17
{¶39} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that “ ‘but for counsel’s errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine the outcome.’ ” Hinton v. Alabama, 571 U.S. 263, 134
S.Ct. 1081, 1089, 188 L.Ed.2d 1 (2014), quoting Strickland, 466 U.S. at 694; e.g.,
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113;
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of
the syllabus. Furthermore, courts ordinarily may not simply presume the
existence of prejudice but must require the defendant to affirmatively establish
prejudice. State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22. As
we have repeatedly recognized, speculation is insufficient to demonstrate the
prejudice component of an ineffective assistance of counsel claim. E.g., State v.
Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons,
4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist.
Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens No.
08CA24, 2009-Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (an argument that is purely speculative
cannot serve as the basis for an ineffectiveness claim).
{¶40} In the case at bar, we do not agree with Appellant that trial counsel
provided ineffective assistance of counsel by failing to assert that Appellant had
not been properly served with the permanent custody motion and notice of the
hearing. Even presuming that Appellant can establish that trial counsel
performed deficiently by failing to raise the issue, Appellant cannot demonstrate
Ross App. No. 22CA15 18
that the result of the proceeding would have been different if counsel had raised
the issue. Instead, Appellant can only speculate that had counsel raised the
issue, the trial court would not have placed the child in the agency’s custody. We
believe that the more likely scenario is that if the trial court had determined that
Appellant had not been properly served, then the court would have continued the
permanent custody hearing until proper service was obtained. Moreover,
Appellant has not claimed that if the trial court had continued the hearing, (1) he
would have appeared to testify, (2) he would have presented evidence that would
have changed the result of the proceeding, or (3) he otherwise would have been
able to allay the agency’s concerns about placing the child in his care.
Consequently, Appellant cannot show that any purported deficient performance
affected the outcome of the proceedings. Therefore, Appellant cannot establish
that trial counsel failed to provide ineffective assistance of counsel.
{¶41} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s second assignment of error.
THIRD ASSIGNMENT OF ERROR
{¶42} In his third assignment of error, Appellant contends that the trial
court’s decision to grant the agency permanent custody of the child is against the
manifest weight of the evidence. He asserts that he “substantially complied with
several conditions of the case plan.” Appellant points out that a June 23, 2021
progress report notes that he and the mother were “actively looking for housing.”
He additionally states that he completed a mental health assessment and
parenting classes and that he “submitted a negative drug screen on July 30,
Ross App. No. 22CA15 19
2019.” Appellant also argues that many of the issues that caused the agency
concern resulted from the mother’s actions and not from his actions.
STANDARD OF REVIEW
{¶43} Generally, a reviewing court will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the
evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶
27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29. When an
appellate court reviews whether a trial court’s permanent custody decision is
against the manifest weight of the evidence, the court “ ‘ “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact]
clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.” ’ ” Eastley v. Volkman,
132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v.
Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001),
quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.
1983). We further observe, however, that 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 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
Ross App. No. 22CA15 20
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.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); accord In re
Christian, 4th Dist. Athens No. 04CA 10, 2004-Ohio-3146, ¶ 7.
{¶44} The question that an appellate court must resolve when reviewing a
permanent custody decision under the manifest weight of the evidence standard
is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895
N.E.2d 809, ¶ 43. “Clear and convincing evidence” is:
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).
{¶45} In determining 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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985),
citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the
clear and convincing standard has been met to the satisfaction of the [trial] court,
Ross App. No. 22CA15 21
the reviewing court must examine the record and determine if the trier of fact had
sufficient evidence before it to satisfy this burden of proof.”).
{¶46} Thus, if a children services agency presented competent and
credible evidence upon which the trier of fact reasonably could have formed a
firm belief that permanent custody is warranted, then the court’s decision is not
against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997
N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2d Dist. Greene Nos. 2012CA32 and
2012CA33, 2012-Ohio-6049, ¶ 17, quoting In re A.U., 2d Dist. Montgomery No.
22287, 2008-Ohio-187, ¶ 9 (“A reviewing court will not overturn a court’s grant of
permanent custody to the state as being contrary to the manifest weight of the
evidence ‘if the record contains competent, credible evidence by which the court
could have formed a firm belief or conviction that the essential statutory elements
* * * have been established.’ ”). A reviewing court should find a trial court’s
permanent custody decision against the manifest weight of the evidence only in
the “ ‘exceptional case in which the evidence weighs heavily against the
[decision].’ ” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d
at 175.
PERMANENT CUSTODY PROCEDURE
{¶47} 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
Ross App. No. 22CA15 22
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 purposes of R.C. Chapter 2151: “to care for and protect children,
‘whenever possible, in a family environment, separating the child from the child's
parents only when necessary for the child's welfare or in the interests of public
safety.’ ” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 29,
quoting R.C. 2151.01(A).
{¶48} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody
of a child to a children services agency if the court determines, by clear and
convincing evidence, that the child’s best interest would be served by the award
of permanent custody and, as applicable here, “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 ending on or after March 18, 1999.” R.C. 2151.414(B)(1)(d).
A. R.C. 2151.414(B)(1)(d)
{¶49} In the case at bar, the trial court found that the child has been in the
agency’s temporary custody for 12 or more months of a consecutive 22-month
period. Appellant does not dispute the trial court’s R.C. 2151.414(B)(1)(d)
finding, so we do not address it.
B. BEST INTEREST
{¶50} R.C. 2151.414(D) directs a trial court to consider “all relevant
factors,” as well as specific factors, to determine whether a child’s best interest
will be served by granting a children services agency permanent custody. The
Ross App. No. 22CA15 23
listed factors include: (1) the child’s interaction and interrelationship 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 child’s wishes, as
expressed directly by the child or through the child’s GAL, with due regard for the
child’s maturity; (3) the child’s custodial history; (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.
{¶51} Deciding whether a grant of permanent custody to a children
services agency will promote a child’s best interest involves a delicate balancing
of “all relevant [best interest] factors,” as well as the “five enumerated statutory
factors.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57,
citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶
56. However, none of the best interest factors requires a court to give it “greater
weight or heightened significance.” Id. Instead, the trial court considers the
totality of the circumstances when making its best interest determination. In re
K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-142, ¶
24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46. In general,
“[a] child’s best interest is served by placing the child in a permanent situation
that fosters growth, stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos.
15CA18 and 15CA19, 2016-Ohio-916, ¶ 66, citing In re Adoption of Ridenour, 61
Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
Ross App. No. 22CA15 24
{¶52} In the case at bar, we believe that the record contains ample, clear
and convincing evidence to support the trial court’s decision that placing the child
in the agency’s permanent custody is in his best interest. The record does not
support a finding that the trial court committed a manifest miscarriage of justice.
Therefore, the trial court’s judgment is not against the manifest weight of the
evidence.
1. Child’s Interactions and Interrelationships
{¶53} The evidence shows that Appellant did not consistently visit the
child and that he has not visited the child since December 7, 2021. When
Appellant did attend visits, he had frequent outbursts during visitations, and these
outbursts frightened the child.
{¶54} On the other hand, the foster family provides for the child’s well-
being, and the child appears to have a “strong bond” with the family.
2. Child’s Wishes
{¶55} The guardian ad litem recommended that the court grant the agency
permanent custody of the child. In re I.A.-W., 8th Dist. Cuyahoga No. 111217,
2022-Ohio-1766, ¶ 37; In re S.M., 4th Dist. Highland No. 14CA4, 2014–Ohio–
2961, ¶ 32 (both recognizing that R.C. 2151.414 permits juvenile courts to
consider a child’s wishes as child directly expresses or through the guardian ad
litem).
3. Custodial History
{¶56} The record shows that the child has been in the agency’s temporary
Ross App. No. 22CA15 25
custody since August 10, 2017, when he was barely two months old. Since that
time, the child has lived with the same foster family.
4. Legally Secure Permanent Placement
{¶57} “Although the Ohio Revised Code does not define the term, ‘legally
secure permanent placement,’ this court and others have generally interpreted
the phrase to mean a safe, stable, consistent environment where a child’s needs
will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56,
citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9,
2001) (implying that “legally secure permanent placement” means a “stable, safe,
and nurturing environment”); see also In re K.M., 10th Dist. Franklin Nos. 15AP-
64 and 15AP-66, 2015-Ohio-4682, ¶ 28 (observing that legally secure permanent
placement requires more than stable home and income but also requires
environment that will provide for child's needs); In re J.H., 11th Dist. Lake No.
2012-L-126, 2013-Ohio-1293, ¶ 95 (stating that mother unable to provide legally
secure permanent placement when she lacked physical and emotional stability
and that father unable to do so when he lacked grasp of parenting concepts).
Thus, “[a] legally secure permanent placement is more than a house with four
walls. Rather, it generally encompasses a stable environment where a child will
live in safety with one or more dependable adults who will provide for the child’s
needs.” In re M.B. at ¶ 56.
{¶58} In the case at bar, the evidence shows that the child needs a legally
secure permanent placement and that he cannot achieve this type of placement
without granting the agency permanent custody. The parents do not have a
Ross App. No. 22CA15 26
stable home for the child and have not adequately resolved the concerns
regarding domestic violence in the home. Moreover, neither parent maintained
consistent communication with the agency caseworkers or demonstrated a
consistent commitment to the child. The parents have not demonstrated that
they have a stable environment where the child can live in safety with a
dependable adult who will provide for the child’s needs.
{¶59} Moreover, even if Appellant complied with some aspects of the case
plan, as we have observed in the past, a parent’s case plan compliance may be
a relevant, but not necessarily conclusive, factor when a court considers a
permanent custody motion. In re B.P., 4th Dist. Athens No. 20CA13, 2021-Ohio-
3148, ¶ 57; In re T.J., 4th Dist. Highland No. 2016-Ohio-163, ¶ 36, citing In re
R.L., 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-3117, ¶ 34 (“although
case plan compliance may be relevant to a trial court’s best interest
determination, it is not dispositive of it”); In re S.C., 8th Dist. Cuyahoga No.
102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a case plan is not, in and of
itself, dispositive of the issue of reunification”); accord In re K.M., 4th Dist. Ross
No. 19CA3677, 2019-Ohio-4252, ¶ 70, citing In re W.C.J., 4th Dist. Jackson No.
14CA3, 2014-Ohio-5841, ¶ 46 (“[s]ubstantial compliance with a case plan is not
necessarily dispositive on the issue of reunification and does not preclude a grant
of permanent custody to a children’s services agency”); In re N.L., 9th Dist.
Summit No. 27784, 2015-Ohio-4165, ¶ 35 (“substantial compliance with a case
plan, in and of itself, does not establish that a grant of permanent custody to an
agency is erroneous”). “Indeed, because the trial court’s primary focus in a
Ross App. No. 22CA15 27
permanent custody proceeding is the child’s best interest, ‘it is entirely possible
that a parent could complete all of his/her case plan goals and the trial court still
appropriately terminate his/her parental rights.’ ” W.C.J. at ¶ 46, quoting In re
Gomer, 3d Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-Ohio-
1723, ¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14, 2008-Ohio-5227, ¶
24 (“when considering a R.C. 2151.414(D)(1)(d) permanent custody motion, the
focus is upon the child’s best interests, not upon the parent’s compliance with the
case plan”). Thus, a parent’s case plan compliance will not preclude a trial court
from awarding permanent custody to a children services agency when doing so
is in the child’s best interest. Id.{¶60} In the case sub judice, as we noted above, we believe that the
record contains ample clear and convincing evidence that placing the child in the
agency’s permanent custody is in his best interests. Furthermore, contrary to
Appellant’s argument that he “substantially complied with several conditions of
the case plan,” the trial court specifically found that Appellant “did not complete
significant portions of the case plan.”
{¶61} Based upon all of the foregoing evidence, the trial court could have
been firmly convinced that placing the child in the agency’s permanent custody is
in the child’s best interest. Therefore, the court’s judgment is not against the
manifest weight of the evidence.
{¶62} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s third assignment of error.
Ross App. No. 22CA15 28
FOURTH ASSIGNMENT OF ERROR
{¶63} In his fourth assignment of error, Appellant argues that the trial
court’s decision is against the manifest weight of the evidence due to the
agency’s failure to establish that it used reasonable efforts to allow the child to be
returned to the family’s home. He alleges that the agency did not attempt to help
him obtain childcare so that he would be able to maintain full-time employment.
Appellant asserts that his inability to manage both full-time employment and
taking care of the child was the primary obstacle to reunification and that the
agency should have done more to help him. He also contends that the agency
did not present sufficient evidence throughout the proceedings that it otherwise
used reasonable efforts to reunify the family.
{¶64} When a trial court “removes a child from the child’s home or
continues the removal of a child from the child’s home,” R.C. 2151.419(A)(1)
requires a trial court to determine whether a children services agency “made
reasonable efforts to prevent the removal of the child from the child's home, to
eliminate the continued removal of the child from the child's home, or to make it
possible for the child to return safely home.” “In determining whether reasonable
efforts were made, the child's health and safety shall be paramount.” R.C.
2151.419(A)(1). The agency bears the burden to prove that it has made
reasonable efforts. R.C. 2151.419(A)(1).
{¶65} However, R.C. 2151.419(A)(1) applies only at “adjudicatory,
emergency, detention, and temporary-disposition hearings, and dispositional
hearings for abused, neglected, or dependent children * * *.” C.F., supra, at ¶ 41;
Ross App. No. 22CA15 29
accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-
916, ¶ 72. Thus, “ ‘[b]y its plain terms, the statute does not apply to motions for
permanent custody brought pursuant to R.C. 2151.413, or to hearings held on
such motions pursuant to R.C. 2151.414.’ ” C.F. at ¶ 41, quoting In re A.C., 12th
Dist. Clermont No. CA2004-05-041, 2004-Ohio-5531, ¶ 30. Nonetheless, “[t]his
does not mean that the agency is relieved of the duty to make reasonable efforts”
before seeking permanent custody. Id. at ¶ 42. Instead, at prior “stages of the
child-custody proceeding, the agency may be required under other statutes to
prove that it has made reasonable efforts toward family reunification.” Id.
Additionally, “[if] the agency has not established that reasonable efforts have
been made prior to the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time.” Id. at ¶ 43.
{¶66} In the case sub judice, appellant’s appeal does not emanate from
one of the types of hearings specifically listed in R.C. 2151.419(A): “adjudicatory,
emergency, detention, and temporary-disposition hearings, and dispositional
hearings for abused, neglected, or dependent children.” The agency, therefore,
did not have the burden to prove at the permanent custody hearing that it used
reasonable efforts to reunify the family, unless it had not previously done so.
Here, our review of the record reflects that the trial court made multiple
reasonable efforts findings before the agency filed its permanent custody motion.
Thus, the court did not need to again find that the agency used reasonable
efforts before it could grant the agency permanent custody of the child. E.g., In
Ross App. No. 22CA15 30
re M.H.–L.T., 4th Dist. Washington No. 17CA12, 2017-Ohio-7825, ¶ 64; In re
S.S., 4th Dist. Jackson Nos. 16CA7 and 16CA8, 2017-Ohio-2938, ¶ 168.
{¶67} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s fourth assignment of error.
CONCLUSION
{¶68} Having overruled appellant’s four assignments of error, we affirm
the trial court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 22CA15 31
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Common Pleas Court, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, 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.