In re M.A. ( 2021 )

[Cite as In re M.A., 2021-Ohio-1078.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 20AP-345
M.A., : (C.P.C. No. 15JU-13229)
[A.A., : (REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on March 31, 2021
On brief: Bellinger & Donahue, and Kerry M. Donahue, for
appellant.
On brief: Steven Thomas D. Potts, for appellee Franklin
County Children Services.
APPEAL from the Franklin County Court of Common Pleas
Division of Domestic Relations, Juvenile Branch
BROWN, J.
{¶ 1} Appellant, A.A. ("mother"), appeals from a judgment of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting the
motion of appellee, Franklin County Children Services ("FCCS" or "agency"), for permanent
custody of mother's child, M.A. For the reasons which follow, we affirm.
{¶ 2} M.A. was born on June 12, 2006. FCCS obtained emergency custody of M.A.
on May 19, 2017, following an incident where mother found M.A. vaginally penetrating his
six-year-old sister. FCCS filed a complaint alleging that M.A. was a dependent child and the
trial court granted FCCS temporary custody of M.A. on May 23, 2017.
{¶ 3} On August 14, 2017, the case proceeded to trial on the dependency charge
before a magistrate. Mother was present at the August 14, 2017 trial with her attorney and
a Somali language interpreter. Mother did not contest the dependency charge. Following
the August 14, 2017 hearing, the magistrate adjudicated M.A. dependent, ordered
No. 20AP-345 2
temporary custody to FCCS, and adopted a case plan. The case plan provided that M.A.
would complete a juvenile sex offender assessment and follow any recommendations for
treatment and counseling. The case plan obligated mother to complete family counseling
and visit M.A. on a regular basis.
{¶ 4} The agency initially placed M.A. in a foster home; however, M.A. was
removed from the foster home due to unacceptable sexual behavior. On October 2, 2017,
the agency placed M.A. at the Hittle House, a certified children's residential treatment
center located in Columbus, Ohio. The agency placed M.A. at an emergency shelter care
facility located in Columbus, Ohio on July 11, 2018, after M.A. was discharged from the
Hittle House due to his lack of progress in treatment. On October 15, 2018, the agency
placed M.A. at a residential treatment facility located in Indianapolis, Indiana. M.A. was
diagnosed with Conduct Disorder, Post Traumatic Stress Disorder, Attention Deficit and
Hyperactive Disorder, and Sexually Maladapted Behaviors during treatment. By October
2018, the agency lost contact with mother and did not have an address for her.
{¶ 5} The trial court granted FCCS an extension of the temporary custody order on
May 24, 2018. FCCS filed a motion for permanent custody on October 16, 2018. The agency
served mother with notice of the hearing on the motion by publication.
{¶ 6} Mother did not appear for the November 16, 2018 hearing on the motion for
permanent custody before a magistrate. Mother's attorney was present at the hearing and
informed the magistrate that mother was not contesting the motion for permanent custody.
However, when mother's attorney began to cross-examine the child's guardian ad litem
("GAL"), the magistrate concluded that mother was contesting the motion for permanent
custody. As such, the magistrate continued the matter for a contested trial. The magistrate
also appointed an attorney to represent M.A.
{¶ 7} The trial court scheduled another hearing on the motion for permanent
custody for April 23, 2019. As mother had resumed contact with the agency in early 2019,
the agency served mother with notice of the April 23, 2019 hearing by personal service.
Mother did not appear for the April 23, 2019 hearing, and mother's attorney again informed
the magistrate that mother was not contesting the motion.
{¶ 8} The magistrate issued a decision on May 2, 2019 granting FCCS's motion for
permanent custody. Mother filed an objection to the magistrate's decision asserting that
the magistrate's decision was against the manifest weight of the evidence, that mother
No. 20AP-345 3
received ineffective assistance of counsel, and several other grounds for objection. Mother
also filed a motion for admission of additional evidence and/or motion for new trial.
{¶ 9} The court held a hearing on the motion for additional evidence/new trial on
July 31, 2019. Mother appeared at the hearing with her attorney. Mother's attorney
informed the court that mother appeared at the courthouse the day after the April 23, 2019
hearing, as she "was told * * * by the caseworker and also by other court personnel * * * that
that was when she needed to appear." (July 31, 2019 Tr. at 3.) The trial court denied
mother's motion for a new trial, concluding mother "mistakenly showing up the day after
trial" did not constitute "grounds for a new trial." (Sept. 16, 2019 Decision & Jgmt. Entry at
2.)
{¶ 10} On November 18, 2019, the trial court held a hearing on mother's objections
to the magistrate's decision. Mother appeared at the hearing with her attorney. Mother's
attorney informed the court that mother began "speaking to [counsel] in Somali" as the
hearing was about to begin, causing counsel to believe that "[p]art of the problem" in the
case was "a language deficiency." (Nov. 18, 2019 Tr. at 2.) The court continued the hearing.
{¶ 11} On January 13, 2020, the trial court resumed the hearing on mother's
objections to the magistrate's decision. Mother appeared at the January 13, 2020 hearing
with her attorney and a Somali language interpreter. Mother's attorney informed the court
he believed he rendered ineffective assistance during the case because he should have
known that mother needed an interpreter.
{¶ 12} On July 1, 2020, the trial court issued a decision and judgment entry
overruling mother's objections to the magistrate's decision. The court adopted the
magistrate's decision granting the agency's motion for permanent custody and divesting
mother of her parental rights.
{¶ 13} Mother appeals, assigning the following two assignments of error for our
review:
[I.] THE APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL.
[II.] APPELLANT WAS DENIED DUE PROCESS AS SHE IS
UNABLE TO COMMUNICATE AND UNDERSTAND THE
ENGLISH LANGUAGE AND WAS NOT APPROPRIATELY
PROVIDED AN INTERPRETER TO UNDERSTAND
PROCEEDINGS AND INSTRUCTIONS FROM FCCS OR
No. 20AP-345 4
PROVIDED A READABLE AND UNDERSTANDABLE CASE
PLAN.
{¶ 14} For ease of discussion, we address mother's second assignment of error first.
Mother's second assignment of error asserts she was denied due process as she was not
provided a case plan written in Somali or provided with a Somali language interpreter to
assist her during case proceedings or communications with FCCS. Mother states she is
from Somalia, speaks Somali, and is unable to understand and communicate in English.
{¶ 15} "The right to parent one's child is a fundamental right protected by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution and Article
I, Section 16, of the Ohio Constitution." In re L.W., 10th Dist. No. 17AP-586, 2018-Ohio-
2099, ¶ 6, citing In re A.J., 10th Dist. No. 14AP-284, 2014-Ohio-5046, ¶ 18; In re Murray,
52 Ohio St.3d 155, 157 (1990). " 'Permanent termination of parental rights has been
described as "the family law equivalent of the death penalty in a criminal case." Therefore,
parents "must be afforded every procedural and substantive protection the law allows." ' "
In re L.B., 10th Dist. No. 19AP-644, 2020-Ohio-3045, ¶ 22, quoting In re Hayes, 79 Ohio
St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991).
{¶ 16} "Due process includes a hearing upon adequate notice, assistance of counsel,
and under most circumstances, the right to be present at the hearing." In re J.Z., 10th Dist.
No. 05AP-8, 2005-Ohio-3285, ¶ 9. See State v. Pina, 49 Ohio App.2d 394, 401 (2d
Dist.1975) (observing, in a criminal case, that the "failure to ensure that non-English
speaking defendants are given the same opportunity as others to be present, to speak in
their defense and to understand what is taking place, in whatever language they possess,
reaches constitutional proportions"). Ohio has "incorporated appropriate due process
requirements in the statutes and rules governing juvenile adjudications and dispositions,
which are reflected in the extensive and rather intricate statutory framework expressed in
R.C. 2151.413 and 2151.414." In re Thompson, 10th Dist. No. 00AP-1358 (Apr. 26, 2001).
{¶ 17} Although mother asserted ten different grounds in her objection to the
magistrate's decision, mother did not object on the ground that she was denied due process
due to the lack of an interpreter or a case plan written in Somali. Pursuant to Juv.R.
40(D)(3)(b)(iv) and Civ.R. 53(D)(3)(b)(iv), except for a claim of plain error, a party forfeits
appellate review of any issue not raised in their objection to the magistrate's decision.
Tucker v. Hines, 10th Dist. No. 18AP-375, 2020-Ohio-1086, ¶ 6 (stating that a "party who
No. 20AP-345 5
fails to timely object to a magistrate's decision is limited by operation of Juv.R.
40(D)(3)(b)(iv) to claims of plain error on appeal"); Trombley v. Trombley, 9th Dist. No.
17CA0012-M, 2018-Ohio-1880, ¶ 10 (stating that "an appellant forfeits appellate review of
any issues not stated in her objections to the magistrate's decision"). See also Juv.R.
40(D)(3)(b)(ii) and Civ.R. 53(D)(3)(b)(ii) (providing that an "objection to a magistrate's
decision shall be specific and state with particularity all grounds for objection").
{¶ 18} In a civil proceeding, plain error is limited to "those extremely rare cases
where exceptional circumstances require its application to prevent a manifest miscarriage
of justice, and where the error complained of, if left uncorrected, would have a material,
adverse effect on the character of and public confidence in, judicial proceedings." In re
Moore, 10th Dist. No. 04AP-299, 2005-Ohio-747, ¶ 8, citing Goldfuss v. Davidson, 79 Ohio
St.3d 116, 122 (1997). "Notice of plain error is to be taken with utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice." Tucker at
¶ 7, citing State v. Phillips, 74 Ohio St.3d 72, 83 (1995).
{¶ 19} R.C. 2311.14(A)(1) and Sup.R. 88 set forth the circumstances under which the
appointment of a foreign language interpreter is mandated. R.C. 2311.14(A)(1) provides
that"[w]henever because of a hearing, speech, or other impairment a party to or witness in
a legal proceeding cannot readily understand or communicate, the court shall appoint a
qualified interpreter to assist such person." Sup.R. 88 provides, in relevant part, as follows:
(A) When appointment of a foreign language interpreter is
required.
A court shall appoint a foreign language interpreter in a case or
court function in either of the following situations:
(1) A party or witness who is limited English proficient or non-
English speaking requests a foreign language interpreter and
the court determines the services of the interpreter are
necessary for the meaningful participation of the party or
witness;
(2) Absent a request from a party or witness for a foreign
language interpreter, the court concludes the party or witness
is limited English proficient or non-English speaking and
determines the services of the interpreter are necessary for the
meaningful participation of the party or witness.
No. 20AP-345 6
{¶ 20} The decision regarding whether a party or witness is "entitled to a court-
appointed language interpreter is based on the trial court's assessment of the defendant's
apparent ability to comprehend and communicate in the English language." State v. G.C.,
10th Dist. No. 15AP-536, 2016-Ohio-717, ¶ 17, citing State v. Castro, 2d Dist. No. 14398
(Sept. 20, 1995). "An imperfect grasp of the English language may be sufficient as long as
the [party or witness] has the ability to understand and communicate in English." Id., citing
Castro. "The decision to appoint an interpreter is within the trial court's sound discretion."
Luna-Corona v. Esquivel-Parrales, 12th Dist. No. CA2008-07-175, 2009-Ohio-2628, ¶ 11,
citing State v. Marquez, 11th Dist. No. 2007-A-0085, 2008-Ohio-5324, ¶ 30.
{¶ 21} In G.C., the defendant, a native of Bangladesh, India, argued that the trial
court erred by accepting his guilty plea without appointing an interpreter to assist him
during the plea hearing. The defendant did not ask the court to appoint an interpreter at
the plea hearing, and the transcript of the plea hearing revealed that the trial court
"personally addressed [the defendant] and [he] responded appropriately in English to all
of the court's inquiries." Id. at ¶ 22. As such, this court found no support for defendant's
"post-hearing claim that he [was] not English proficient" and in need of an interpreter at
the plea hearing. Id. See also Luna-Corona at ¶ 34 (concluding that the record "did not
demonstrate that [the appellant] was unable to understand and communicate in English,
as the record indicate[d] that [the appellant] responded to all questions directed to him" by
the magistrate at the hearing on a petition for a civil protection order); State v. Flores, 10th
Dist. No. 19AP-405, 2020-Ohio-593, ¶ 14 (finding no support for the appellant's contention
that "he was not English proficient and in need of the services of an interpreter," as the
appellant "responded appropriately to the trial court's inquiries at the plea hearing"); State
v. Blankenship, 77 Ohio App.3d 324, 331 (10th Dist.1991); State v. Lopez, 8th Dist. No.
90240, 2008-Ohio-3534, ¶ 11; Castro.
{¶ 22} Our review of the record in the present case demonstrates that mother was
able to understand and communicate in English. At the beginning of the August 14, 2017
dependency hearing, the magistrate asked the Somali language interpreter to state mother's
name. Both mother and the interpreter responded to the magistrate's question. The
magistrate then personally addressed mother, inquiring as follows:
No. 20AP-345 7
Magistrate Holben: [Mother], your Attorney tells me that
you're willing to proceed uncontested today and have this Court
find [M.A.] to be a dependent minor. Is that correct?
[Mother]: Yes, Your Honor.
Magistrate Holben: By telling me that, you're telling me you
do understand you're giving up your right to trial, so you are
giving up your right for the Prosecutor to prove the allegations
in the complaint.
[Mother]: Yes.
Magistrate Holben: And the Court can issue custody orders
and other orders on the family to address reunification through
a case plan.
[Mother]: Yes.
Magistrate Holben: Does mother have any questions about
that?
[Mother]: No, Your Honor.
Magistrate Holben: Okay. Has anybody threatened you or
promised you to proceed uncontested today?
[Mother]: No one forced me.
Magistrate Holben: Are you under the influence of any drugs
or alcohol that would impact your decision today?
[Mother]: No.
(Aug. 14, 2017 Tr. at 4-5.)
{¶ 23} The magistrate asked mother's attorney if mother was "in agreement with the
case plan," and counsel responded "[y]es." (Aug. 14, 2017 Tr. at 11.) The magistrate then
asked mother if there was anything else she wished to say, and mother responded "[n]o."
(Aug. 14, 2017 Tr. at 11.) The magistrate indicated she would schedule the interim review
hearing on the case for December 13, 2017, and asked was "December 13th okay for
mother?" Mother responded "[y]es." (Aug. 14, 2017 Tr. at 12.) The magistrate further
asked "[a]nd the annual review, May 21, 2018[?]" Mother responded "[t]hat's okay."
(Aug. 14, 2017 Tr. at 12.)
No. 20AP-345 8
{¶ 24} The agency's periodic administrative reviews of the case demonstrate that
mother was communicating with the agency in English. For instance, in a May 18, 2018
review the agency stated "[m]other has reported that [M.A.'s sister] completed
assessment/counseling at Children's Hospital," and that mother "reportedly plans to start
attending visits consistently, as well as parent support groups." (May 18, 2018 Semiannual
Administrative Review ("SAR") at 2.) In an October 15, 2018 review, the agency noted that
mother had not contacted M.A. in the past 90 days and that "[mother] report[ed] that she
is busy with work and her other children." (Oct. 15, 2018 Case Review at 5.) In an April 19,
2019 review, the agency stated that mother "report[ed] that her job and having younger
children at home presents as a barrier for her to see [M.A.]," as mother reported "she works
Monday through Friday" and did "not have childcare and [did] not drive and that [made]
it difficult to go see [M.A.]." (Apr. 19, 2019 SAR at 2-3.) There is nothing in the case reviews
documenting a perceived inability to communicate with mother due to a language barrier.
{¶ 25} Mother asserts on appeal that she did "not understand case plans" or "her
participation expectations" under the case plan due to her alleged language barrier.
(Appellant's Brief at 11.) However, at the dependency hearing, mother informed the
magistrate that she understood the court could issue a case plan to address reunification
and she did not have any questions about the case plan. The transcript from the dependency
hearing demonstrates that mother, not the interpreter, responded to the magistrate's
questions appropriately in English. Compare State v. Kami, 5th Dist. No. 19 CAC12 0065,
2020-Ohio-5110, ¶ 24 (observing that, at the plea colloquy, "the interpreter, not appellant,
responded to the trial court's questions"). Mother also initially began to comply with her
case plan obligation to visit M.A. Mother visited M.A. "five times at the agency" while M.A.
was in foster care and visited M.A. "two times" at the Hittle House. (Nov. 16, 2018 Tr. at
13.) Although mother later did not visit with M.A. for one year, mother's early visits
demonstrate that mother understood she was supposed to visit M.A. Mother's statements
to the agency documented in the case reviews demonstrate that mother stopped visiting
M.A. due to her work schedule, lack of childcare, and lack of transportation. Such
statements demonstrate that mother understood her case plan obligation to visit M.A., and
mother chose not to visit M.A. for reasons unrelated to an alleged language barrier.
{¶ 26} Mother appeared for the December 13, 2017 interim review hearing with her
attorney; an interpreter was not present at the hearing. Mother did not appear for the
No. 20AP-345 9
May 21, 2018 annual review hearing or the November 16, 2018 or April 23, 2019 hearings
on the motion for permanent custody. Although mother did not appear at the hearings on
the motion for permanent custody, mother was properly served with notice of both hearings
and was represented by counsel at the hearings. See In re Coffman, 10th Dist. No. 99AP-
1376 (Sept. 7, 2000), citing In re Greene, 10th Dist. No. 92AP-288 (Nov. 17, 1992)
(concluding that, although mother was not present at the hearing on the motion for
permanent custody, mother "was represented by counsel throughout the custody
proceedings, which, coupled with notice, satisfied her due process right to a hearing").
Neither mother nor her attorney indicated to the magistrate at the December 13, 2017,
May 21, 2018, November 16, 2018 or April 23, 2019 hearings that mother needed an
interpreter or a case plan written in Somali.
{¶ 27} After the magistrate granted the agency's motion for permanent custody,
mother and her attorney began to indicate to the court that mother would like an
interpreter. At the July 31, 2019 hearing on mother's motion for additional evidence/new
trial, the trial judge asked mother if she needed an interpreter, and mother responded
"[y]es." (July 31, 2019 Tr. at 3.) Mother's attorney informed the court that he "had been
conversing" with mother, but "guess[ed] [he] should have asked that question." (July 31,
2019 Tr. at 4.) When mother's attorney informed the court that mother had moved to New
York for a period of time during the case, mother told the court "I never go [sic] New York."
(July 31, 2019 Tr. at 15.)
{¶ 28} At the November 18, 2019 hearing on mother's objections to the magistrate's
decision, mother's attorney informed the court that he believed mother had a "language
deficiency." (Nov. 18, 2019 Tr. at 2.) The court asked counsel how he had been
communicating with his client, and counsel told the court that mother spoke "enough
English that [counsel] thought that [he] did not need an interpreter, but to - - this morning
it became woefully clear that [mother] does." (Nov. 18, 2019 Tr. at 3.) The court indicated
it would continue the hearing and told counsel it was his obligation "to go over and get an
interpreter" for his client if she needed one. (Nov. 18, 2019 Tr. at 11.) When the court asked
for mother's address, the following exchange occurred:
[Mother]: Address?
Attorney Rowland: What is your address?
No. 20AP-345 10
[Mother]: 1954
Attorney Rowland: 1964 (sic) –
[Mother]: No, 54.
Attorney Rowland: 54
[Mother]: Oakland Park.
Attorney Rowland: Oakland Park, okay.
[Mother]: Apartment A.
Attorney Rowland: Zip?
[Mother]: 43224.
(Nov. 18, 2019 Tr. at 9-10.)
{¶ 29} At the January 13, 2020 hearing on mother's objections, mother's attorney
again informed the court that he "presumed mother had sufficient ability [to communicate
in English] and when [counsel] spoke to [mother] from time to time, [he] felt she did."
(Jan. 13, 2020 Tr. at 14.) Counsel told the court that it was only at "the last couple of court
hearings" that it became "clear [to counsel] that [mother] did not understand what
[counsel] was saying." (Jan. 13, 2020 Tr. at 14.) The agency attorney informed the court
that "[a]t no time prior to the [permanent custody] trial * * * was it ever thought of by
anyone interacting with mother whether that be mother's counsel, guardian ad litem, or
couns - - or Children Services did we believe that she needed an interpreter." (Jan. 13, 2020
Tr. at 5.)
{¶ 30} While mother and her counsel indicated to the court at the hearings following
the magistrate's May 2, 2019 decision that mother would like an interpreter, mother never
moved the court for the mandatory appointment of an interpreter pursuant to R.C. 2311.14
and Sup.R. 88. Although an interpreter was present at the August 14, 2017 dependency
hearing, there is nothing in the record demonstrating mother asked the court to appoint an
interpreter for the dependency hearing. Thus, as mother never specifically asked the court
to appoint an interpreter, the trial court never made a finding regarding mother's level of
No. 20AP-345 11
English proficiency or whether an interpreter was necessary for mother's meaningful
participation in the case.
{¶ 31} Mother's ability to respond to all of the magistrate's inquiries at the
dependency hearing and mother's communications with the agency documented in the case
reviews demonstrate mother's ability to comprehend and communicate in English.
Accordingly, in the absence of a specific request for an interpreter, the record fails to
demonstrate grounds which would have caused the court to independently conclude that
mother was not English proficient and the services of an interpreter were necessary for
mother's meaningful participation in the case. Mother's desire for an interpreter at the
hearings following the magistrate's decision does not demonstrate an interpreter was
necessary for mother's participation at earlier periods in the case. Compare G.C. at ¶ 32
(concluding that, although defense counsel retained an interpreter for the sentencing
hearing and the court approved defendant's request for reimbursement of the interpreter's
fees, such facts could not reasonably be "construed as a finding that the appointment of an
interpreter for the plea hearing was mandatory"); State v. Abdugheneima, 6th Dist. No. L-
17-1013, 2017-Ohio-8423, ¶ 22 (rejecting the defendant's "contention that because the trial
court granted his request for a translator at sentencing, it was incumbent on it to do so for
trial"). Moreover, mother's statements at the hearings following the magistrate's decision
continued to demonstrate mother's ability to comprehend and communicate in English, as
mother was able to correct misstatements from her attorney. Mother's attorney's
statements at the hearings demonstrate that counsel perceived no language barrier during
his communications with mother throughout the first two years the case was pending.
{¶ 32} Accordingly, as the record demonstrates mother possessed the ability to
comprehend and communicate in English, mother fails to demonstrate the lack of an
interpreter or a case plan written in Somali deprived her of due process. As such, mother
fails to establish that the present case presents the exceptional circumstances necessary to
establish plain error.
{¶ 33} Mother's second assignment of error is overruled.
{¶ 34} Mother's first assignment of error asserts her trial attorney rendered
ineffective assistance of counsel. Mother contends her attorney was ineffective by failing to
communicate with her through an interpreter and by proceeding uncontested on the
motion for permanent custody.
No. 20AP-345 12
{¶ 35} R.C. 2151.352, as well as constitutional guarantees of due process and equal
protection, guarantee parents the right to counsel at all stages of a permanent custody
proceeding. In re J.J., 10th Dist. No. 06AP-495, 2006-Ohio-6151, ¶ 28, citing State ex rel.
Heller v. Miller, 61 Ohio St.2d 6 (1980). The right to counsel includes the right to the
effective assistance of counsel. Id., citing In re Heston, 129 Ohio App.3d 825, 827 (1st
Dist.1998). The two-part test for ineffective assistance of counsel used in criminal cases,
announced in Strickland v. Washington, 466 U.S. 668 (1984), is "equally applicable in
actions by the state to force the permanent, involuntary termination of parental rights." In
re S.G., 10th Dist. No. 10AP-442, 2010-Ohio-5722, ¶ 18, citing In re S.B., 183 Ohio App.3d
300, 2009-Ohio-3619, ¶ 25.
{¶ 36} To establish ineffective assistance of counsel under the Strickland test,
mother must demonstrate that: (1) counsel's performance was so deficient that he or she
was not functioning as the counsel guaranteed under the Sixth Amendment to the United
States Constitution, and (2) counsel's errors prejudiced mother, depriving her of a trial
whose result is reliable. Strickland at 687; State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph two of the syllabus. The failure to satisfy one prong of the Strickland test negates
a court's need to consider the other. Strickland at 697.
{¶ 37} Mother may establish deficient performance by identifying "acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment."
Strickland at 690. "Judicial scrutiny of counsel's performance must be highly deferential
* * * [and a] court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Strickland at 689; Bradley at 141.
Tactical or strategic trial decisions, even if ultimately unsuccessful, do not generally
constitute ineffective assistance of counsel. State v. Carter, 72 Ohio St.3d 545 (1995). To
show prejudice resulting from counsel's deficient performance, mother " 'must prove that
there exists a reasonable probability that, were it not for counsel's errors, the result of the
trial would have been different.' " State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-
4250, ¶ 42, quoting Bradley at paragraph three of syllabus. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." State v. Montgomery, 148
Ohio St.3d 347, 2016-Ohio-5487, ¶ 82, citing Strickland at 694.
{¶ 38} Mother asserts that, because counsel did not speak to her through an
interpreter, she did not understand the case proceedings, her obligations under the case
No. 20AP-345 13
plan, or the dates she was to appear for hearings. However, our analysis of mother's second
assignment of error demonstrates that mother possessed the ability to comprehend and
communicate in English and that mother understood her obligations under the case plan.
Compare State v. Oluoch, 10th Dist. No. 07AP-45, 2007-Ohio-5560, ¶ 42 (rejecting the
appellant's "contention that his counsel rendered ineffective assistance for failing to obtain
an interpreter during appellant's plea hearing" as the "record established that no language
barrier precluded appellant from understanding what transpired during the plea hearing").
{¶ 39} Furthermore, there is nothing in the record depicting the conversations
between mother and counsel regarding the case proceedings, the case plan, or the hearing
dates. When proof outside the record is " 'necessary to support an ineffective assistance
claim * * * it is not appropriate for consideration on direct appeal.' " State v. Phipps, 10th
Dist. No. 13AP-640, 2014-Ohio-2905, ¶ 69, quoting State v. Zupancic, 9th Dist. No.
12CA0065, 2013-Ohio-3072, ¶ 4. Accordingly, the record does not support mother's
contention that her counsel rendered ineffective assistance by failing to speak to her
through an interpreter.
{¶ 40} Mother further contends her attorney rendered deficient performance by
proceeding uncontested on the motion for permanent custody. However, even if we were
to presume counsel rendered deficient performance as mother suggests, mother fails to
establish a reasonable probability that the outcome of the trial would have differed had her
attorney contested the motion. The trial court concluded that "due to the overwhelming
amount of evidence via testimony heard at trial," mother's objection asserting ineffective
assistance of counsel lacked merit. (Decision & Entry Denying Mother's Obj. at 7-8.) The
trial court determined the manifest weight of the evidence supported the magistrate's
decision to grant FCCS's motion for permanent custody.
{¶ 41} R.C. 2151.414 governs the termination of parental rights in Ohio. In re K.H.,
119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42. Pursuant to R.C. 2151.414(B)(1), a trial court
may grant permanent custody of a child to an agency if the court determines, by clear and
convincing evidence, that: (1) it is in the best interest of the child to grant permanent
custody of the child to the agency, and (2) one of the situations set forth in R.C.
2151.414(B)(1)(a) through (e) applies. Clear and convincing evidence is more than a mere
preponderance of the evidence; it concerns that "measure or degree of proof which 'will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
No. 20AP-345 14
be established.' " K.H. at ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus. A trial court's determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence. In re Andy-
Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28.
{¶ 42} The trial court adopted the magistrate's finding that clear and convincing
evidence established the circumstances described in R.C. 2151.414(B)(1)(d). R.C.
2151.414(B)(1)(d) describes the situation where 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." See also R.C.
2151.413(D)(1) (obligating the agency to file a motion requesting permanent custody when
a child has been in agency custody for 12 or more months of a consecutive 22-month period,
unless certain exceptions apply); In re J.P., 10th Dist. No. 18AP-834, 2019-Ohio-1619, ¶ 21.
Mother does not dispute that the trial court correctly found M.A. was in the temporary
custody of FCCS for 12 or more months of a consecutive 22-month period.
{¶ 43} Once the trial court determines that one of the circumstances in R.C.
2151.414(B)(1) applies, the court must then determine whether a grant of permanent
custody is in the best interest of the child. R.C. 2151.414(B)(1). R.C. 2151.414(D)(1) provides
that, in determining the best interest of the child, the court must consider all relevant
factors, including but not limited to, the following: (a) the interaction and interrelationship
of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child, (b) the wishes of the
child, as expressed directly by the child or through the child's GAL, with due regard for the
maturity of the child, (c) the custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services agencies or private
child placing agencies for 12 or more months of a consecutive 22-month period, (d) 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 (e) whether any
of the factors in divisions (E)(7) to (11) of R.C. 2151.414 apply in relation to the parents and
child.
{¶ 44} The trial court concluded that the R.C. 2151.414(D)(1)(a) best-interest factor,
regarding M.A.'s interactions and interrelationships with significant people in his life,
weighed heavily in favor of granting FCCS permanent custody. The court observed that
No. 20AP-345 15
mother rarely visited M.A. throughout the case and mother had no "contact whatsoever
with child despite having had the opportunity to do so from April 2018 to April 2019."
(Decision & Entry Denying Mother's Obj. at 3.) Regarding M.A.'s relationship with his
siblings, the court noted the reason the case opened, and found nothing "to indicate that
mom ha[d] implemented a safety plan for the younger child if [M.A.] was to return home."
(Decision & Entry Denying Mother's Obj. at 3.) The record supports the court's findings.
See In re K.R., 10th Dist. No. 18AP-633, 2019-Ohio-2192, ¶ 82, citing In re Schaefer, 111
Ohio St.3d 498, 2006-Ohio-5513, ¶ 59 (noting that "[c]ourts have considered the
consistency of a party's visitation with a child when resolving the R.C. 2151.414(D)(1)(a)
factor").
{¶ 45} The FCCS caseworker testified that, although mother visited M.A. a few times
early in the case, mother did not have any contact with M.A. from April 2018 to April 2019.
Evidence demonstrated that mother's failure to visit M.A. "negatively impact[ed]" M.A. and
caused him to "regress[]" in treatment. (Oct. 15, 2018 Case Review at 1.) Mother asserts
that she was "castigated for non-visitation but the residential treatment facility, that the
child was placed in was [on] the far side of Indiana." (Appellant's Brief at 9.) However, M.A.
did not move to the Indiana facility until October 2018, and was at placement located in
Columbus, Ohio until that time. Mother had visitation scheduled for every Friday at 2:00
p.m. when M.A. was at the Hittle House in Columbus, Ohio, but visited M.A. only twice
during his nine-month placement at the Hittle House. The agency "tried providing cabs and
gas cards to [mother] to facilitate visits." (Oct. 15, 2018 Case Review at 5.) However, when
the agency "scheduled cab services to pick [mother] up" for visits with M.A., mother "would
send the cab away." (Apr. 23, 2019 Tr. at 17.)
{¶ 46} M.A.'s case plan specified that he would remain in agency care "until a
counselor deems it is appropriate for him to be reunified with his family." (Case Plan at 8.)
There is nothing in the record indicating that a counselor found it appropriate for M.A. to
reunite with his family. The caseworker explained at the April 23, 2019 hearing that, as
M.A. had not completed his treatment, returning M.A. to mother's home "would be a risk
for his sister." (Apr. 23, 2019 Tr. at 18.) Thus, mother's sporadic early visits with M.A. and
her failure to visit M.A. for one year, coupled with the ongoing safety concern for M.A.'s
sibling, allowed the court to weigh the R.C. 2151.414(D)(1)(a) factor heavily in favor of
granting FCCS permanent custody.
No. 20AP-345 16
{¶ 47} Regarding the R.C. 2151.414(D)(1)(b) best-interest factor, concerning the
wishes of the child, the court noted that M.A. wished to be reunited with his mother. The
court appropriately weighed the R.C. 2151.414(D)(1)(b) factor against the other factors
present in the case. See In re D.B., 2d Dist. No. 2005-CA-33, 2006-Ohio-479, ¶ 42 (noting
that "[w]hile [the wishes of the child] is one of many factors under R.C. 2151.414(D), it is
not controlling"). Regarding the R.C. 2151.414(D)(1)(c) factor, concerning the custodial
history of the child and whether the child has been in the temporary custody of the agency
for 12 or more months of a consecutive 22-month period, the court concluded that M.A.
had been in the uninterrupted custody of FCCS since the case opened, a period in excess of
12 months. Accordingly, the R.C. 2151.414(D)(1)(c) best-interest factor weighed in favor of
granting FCCS permanent custody.
{¶ 48} The R.C. 2151.414(D)(1)(d) best-interest factor addresses the child's need for
legally secure placement and whether such placement can be achieved without a grant of
permanent custody to the agency. The trial court observed that mother did not complete
her case plan objectives, had no contact with M.A. from April 2018 to April 2019, and M.A.
had not completed his treatment. The trial court noted that the caseworker testified M.A.
was in need of legally secure placement. The record supports the court's findings.
{¶ 49} The caseworker testified that mother "did not complete any family counseling
sessions with [M.A.]" and last visited M.A. "in April of 2018." (Apr. 23, 2019 Tr. at 11.)
Although mother began to have phone contact with M.A. in April 2019, the caseworker
stated that mother had no contact whatsoever with M.A. from April 2018 to April 2019. The
caseworker explained that M.A. was discharged from the Hittle House "for lack of ability to
complete treatment," and that M.A. was "about 50 percent through his completion rate" of
his treatment at the Indiana facility at the time of the April 23, 2019 hearing. (Apr. 23, 2019
Tr. at 14.) In light of M.A.'s ongoing treatment needs, the caseworker stated that placing
M.A. back in mother's home "may cause him more additional trauma and harm as well."
(Apr. 23, 2019 Tr. at 21.) The caseworker testified that M.A. was in need of legally secure
placement in order to complete his treatment and obtain permanency.
{¶ 50} Considering mother's failure to comply with her case plan objectives, M.A.'s
treatment needs, and the caseworker's testimony, the record supports the finding that M.A.
was in need of legally secure placement and that such placement could not be achieved
without a grant of permanent custody to the agency. See In re Brofford, 83 Ohio App.3d
No. 20AP-345 17
869, 878 (10th Dist.1992) (concluding that "[n]oncompliance with the case plan is a ground
for termination of parental rights"); In re Bailey, 11th Dist. No. 2001-G-2340 (July 20,
2001). Accordingly, the R.C. 2151.414(D)(1)(d) best-interest factor weighed in favor of
granting FCCS permanent custody.
{¶ 51} The R.C. 2151.414(D)(1)(e) best-interest factor asks whether any of the factors
in R.C. 2151.414(E)(7) through (11) apply to the parents and child. The court found R.C.
2151.414(E)(10) applicable to the case, which describes the situation where the "parent has
abandoned the child." R.C. 2151.011(C) provides that "[f]or purposes of this chapter, a child
shall be presumed abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the parents resume
contact with the child after that period of ninety days." This court has "taken the position
that the question whether a parent intended to relinquish parental rights is irrelevant to a
determination of abandonment for purposes of R.C. 2151.414(E)(10)," as R.C. 2151.011(C)
defines abandonment " 'solely in terms of the time between contacts.' " In re E.B., 10th Dist.
No. 16AP-352, 2017-Ohio-2672, ¶ 44, quoting In re D.P., 10th Dist. No. 06AP-780, 2007-
Ohio-1703, ¶ 7. The court found that mother did not have any contact with M.A. from April
2018 to April 2019, a period in excess of 90 days.
{¶ 52} Mother contends she did not abandon M.A. because M.A. was placed at a
facility located in Indiana "that mother had no easy access to." (Appellant's Brief at 11.)
However, as mother ceased contact with M.A. in April 2018, mother had abandoned M.A.,
pursuant to R.C. 2151.011(C), before M.A. moved to the Indiana facility in October 2018.
Mother further contends that she did not abandon M.A. because "phone calls and other
methods of potential interaction were denied." (Appellant's Brief at 11.) While the record
indicates the Indiana facility began denying mother phone contact with M.A. after the
magistrate's May 2, 2019 decision, there is nothing in the record indicating mother was
denied phone contact with M.A. from April 2018 to April 2019. As the record supports the
trial court's conclusion that mother abandoned M.A., the R.C. 2151.414(D)(1)(e) best-
interest factor weighed in favor of granting FCCS permanent custody.
{¶ 53} The record demonstrates the trial court properly reviewed and weighed the
evidence pertaining to the best-interest factors. Upon a thorough consideration of the
record, we find clear and convincing evidence exists to support the trial court's
determination that an award of permanent custody was in M.A.'s best interest.
No. 20AP-345 18
{¶ 54} Mother asserts that, if her attorney had contested the motion for permanent
custody, "the hearing would have been scheduled at a later date and time in front of [the
trial court judge] and counsel would have had time to reach out to, notify and prepare his
client for the contested hearing." (Appellant's Brief at 14.) However, mother fails to explain
how her presence at the hearing alone would have altered the outcome of the trial. Mother
does not identify any evidence she would have presented or arguments she would have
made at a contested hearing on the motion for permanent custody. In light of the evidence
in the record, mother fails to establish a reasonable probability that the outcome of the trial
would have differed had her attorney contested the motion for permanent custody.
{¶ 55} Based on the foregoing, mother's first assignment of error is overruled.
{¶ 56} Having overruled mother's two assignments of error, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
is affirmed.
Judgment affirmed.
LUPER SCHUSTER and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District,
Assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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