In re R.L. ( 2022 )

[Cite as In re R.L., 2022-Ohio-1179.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: R.L. JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
Case Nos. 2021 CA 0070 &
2021 CA 0071
OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Juvenile Division, Case
No. 2019 DEP 00164
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 6, 2022
APPEARANCES:
For Plaintiff-Appellee For Father-Appellant
CHRISTOPHER ZUERCHER BRIAN A. SMITH
TIFFANY BIRD Brian A. Smith Law Firm, LLC
GINA NENNIG 123 South Miller Road – Suite #250
Richland County Children Services Fairlawn, Ohio 44333
731 Scholl Road
Mansfield, Ohio 44907
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 2
For Mother-Appellant CASA
DARIN AVERY 411 S. Diamond Street
105 Surges Avenue Mansfield, Ohio 44902
Mansfield, Ohio 44903
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 3
Hoffman, J.
{¶1} In Richland App. No. 21CA70, appellant Charles Warfel (“Father”) appeals
the August 31, 2021 Judgment Entry entered by the Richland County Court of Common
Pleas, Juvenile Division, which overruled his objections to the magistrate’s July 29, 2021
decision, and approved and adopted said decision as order of the court. In Richland App.
No. 21CA71, appellant Nicole Longden (“Mother”) appeals the same judgment entry,
overruling her objections to the magistrate’s July 29, 2021 decision. Appellee is the
Richland County Children Services Board (“RCCS”).
STATEMENT OF THE CASE AND FACTS
{¶2} Mother and Father are the biological parents of R.L. (“the Child”). Paternity
was established after the trial court ordered Father to submit to genetic testing.
{¶3} On July 29, 2019, the trial court issued an ex-parte emergency order of
removal of the Child. On the same day, RCCS filed a complaint, alleging the Child was
dependent and neglected. The complaint asserted RCCS was contacted after Mother
and the Child arrived by ambulance at the Emergency Department of OhioHealth Shelby
Hospital. Mother was requesting a Sexual Assault Nurse Examination (“SANE”) of the
Child because the Child was acting inappropriately. Upon their arrival, hospital staff
determined Mother was under the influence of methamphetamines. In addition, RCCS
had investigated the family in March, and June, 2019, due to allegations Mother and
Father were using illegal substances while caring for the Child.
{¶4} The trial court conducted a shelter care hearing on July 30, 2019, and
placed the Child in the emergency shelter care of RCCS. The trial court appointed Julia
Kleshinski as Guardian ad Litem (“GAL”) for the Child. On August 14, 2019, RCCS
amended the complaint, adding an allegation of abuse, and requested temporary custody
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 4
to the Child’s maternal aunt and uncle, Crystal and Andrew Kanz, with an order of
protective supervision to RCCS.
{¶5} At an adjudicatory hearing on August 29, 2019, RCCS withdrew its
allegations of abuse and neglect, Parents admitted the Child was dependent, and the
magistrate so found. Via Magistrate’s Temporary Order filed September 19, 2019, the
Child was placed in the temporary custody of Crystal and Andrew Kanz. The magistrate
memorialized the finding of dependency via Magistrate’s Decision Adjudicatory Hearing
filed October 3, 2019. The trial court approved the magistrate’s decision on the same
day. Subsequently, the Child’s maternal aunt and uncle withdrew their consent to receive
custody. Following a dispositional hearing on October 25, 2019, the magistrate placed
the Child in the temporary custody of RCCS. The trial court approved the magistrate’s
decision via judgment entry filed October 30, 2019.
{¶6} Parents filed a motion to reunite or, in the alternative, to amend visitation on
May 7, 2020. RCCS filed a motion for disposition on July 14, 2020, requesting an
extension of temporary custody. Father and Mother completed their psychological
evaluations and parenting assessments on November 2, 2020. The reports were
completed on December 26, and 28, 2020, respectively. The assessor’s prognosis for
reunification was noted as poor.
{¶7} On January 8, 2021, RCCS filed a motion for disposition, requesting
permanent custody of the Child. Parents withdrew their motion to reunite on January 19,
2021. Parents filed a second motion to reunite or, in the alternative, to amend visitation
on January 28, 2021. The magistrate conducted a hearing on RCCS’s motion for
permanent custody on April 20, and June 24, 2021.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 5
{¶8} In the Magistrate’s Decision filed July 29, 2021, the magistrate made the
following, relevant Findings of Fact:
8. * * * [The] Case Plan, together with subsequent amendments,
required that [Mother] and [Father] each submit to substance abuse and
mental health evaluations and follow through with any treatment
recommended thereby; participate in parental education; and attend
supervised visitation with [the Child] at Children Services. By Case Plan
Amendment, filed March 17, 2020 and approved by the Court April 10,
2020, the Court required that a “parent educator” attend visitation between
[the Child] and her parents based upon inappropriate conduct by [Father]
and [the Child’s] reaction thereto.
***
9. [Mother] and [Father] participated in parental education through
the Catalyst “triple P” program and through a virtual program with CACY
with some success, although Kylie Peterson, who worked with them at
CACY, commented on inappropriate statements by [Father] both to [the
Child] and to Peterson. For example, while reading a book about “Chip and
Dale,” (cartoon squirrels), [Father] commented to [the Child] that “Daddy
used to be a ‘Chippendale’” (a male exotic dancer), adding “I hope she [the
Child] doesn’t know what that means.” [Father] also completed the Father’s
First program. Children Services and CACY each indicated that [Mother]
and [Father] might benefit from more parental education. According to
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Caseworker Jackson, both [Mother] and [Father] have been resistant and
sporadic as to their participation in mental health counseling. As to
substance abuse counseling and treatment, [Mother] has had apparent
success. [Father] was terminated from treatment at Mansfield Opiate
Recovery for attempting to sell his medication and for a disturbance at their
facility. He reports that he is engaged in medication assisted therapy (MAT)
at Buckeye Opiate Recovery in Columbus, Ohio, although his participation
and degree of success are unknown.
10. [Mother] and [Father] have maintained regular supervised
visitation at Children Services. While they attend regularly, [Father’s]
behavior at times has been problematic and disturbing both to [the Child]
and to the Family Support Specialists who supervise visitation. Jackie
Johnson observed [Father] “interrogating” the foster parents prior to
visitation. He frequently was loud and aggressive, which was upsetting to
[the Child], and resisted efforts to moderate his behavior. At a visit in
September of 2019, when [the Child] was about two and one-half years old,
he approached her in a disturbing “panther craw”; and encouraged her
against her will to wear artificial “press-on” nails, then encouraging her to
scratch him with them. According to others who observed [Father’s]
visitation, episodes of [Father’s] inappropriate conversation and behavior
and his aggressive and frustrated response to correction occurred with
some frequency. According to Family Support Specialists Johnson and
Crouse, [Mother] at times took steps to calm [Father] through these
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 7
episodes; and in the words of Crouse, “[Mother] has come a long way.”
However, both observed [Mother’s] relationship with [the Child] at visitation
to be cold and distant, only ripening to an open and affectionate relationship
recently. Despite these difficulties, both visitation supervisors have
observed times of pleasant and appropriate interaction between [the Child]
and her parents at visitation.
11. As reflected in the preceding paragraph and in the report of the
CASA/Guardian ad Litem, [Father’s] history of turbulent and aggressive
behavior, often involving law enforcement, raises concern as to his ability
to parent [the Child] and questions as to whether [Father], with the influence
of [Mother], can moderate that behavior. Officer Magers testified as to a
“road rage” incident in Shelby in 2020, which resulted in [Father] being
charged with disorderly conduct. Patrolman Stantz and Doctor Butts each
testified about [Father’] aggressive, insufficiently controlled reaction when
he was terminated from Mansfield Opiate Recovery for purportedly
attempting to sell his medication [on] March 5, 2020. His history with law
enforcement documented in the CASA report . . . indicates this [is] a long-
term and chronic problem.
***
13. The examiner in [Mother’s] Lighthouse evaluation . . . documents
[Father’s] past diagnoses of Antisocial Personality Disorder and Children
Services observations of his aggressive and loud behavior and unwanted
touching of [the Child] at visitation. In his evaluation . . ., [Father]
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 8
acknowledges his conviction for felony Domestic Violence and two other
domestically violent incidents with previous partners. He acknowledges
past illegal drug use and commercial drug activity. At one point, he
acknowledges that he currently is involved in medication assisted therapy
(MAT) and using suboxone, a replacement for opiates, while later claiming
he weaned himself from suboxone. He was imprisoned for Gross Sexual
Imposition at age 42 (He was 58 at trial), pleading to that charge in
exchange for dismissal of abduction, attempted rape, and other charges.
He was found guilty of Disorderly Conduct shortly before his Lighthouse
Examination. When asked by the examiner if there was anything that he
wished to change about himself, he responded “No.”
14. The Lighthouse examiner provided a diagnosis of [Father] as
Other Specified Personality Disorder with antisocial and narcissistic traits...
She described his clinical interview as “fraught with contradiction.” * * * The
Lighthouse examiner concludes:
At the age of 57, [Father] presents multiple liabilities associated with
his capacity to safely and competently raise a child. Although it is not
uncommon for individuals in their 20s, and even into their 30s, to engage in
problematic behaviors and subsequently mature, many of [Father’s]
offenses occurred as recently as his late 40s. . . . [Father] described a
longstanding pattern of engaging in criminal, violent, and dangerous
behaviors that have not subsided as he has aged. Consequently, this
examiner has little confidence that any treatment recommendations offered
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 9
by this examiner might address or remediate [Father’s] anger management
and impulse control problems, his exceedingly poor judgment, and his
problematic parenting practices.
Observing that “[Mother] [has] demonstrated an inability to
compensate for [Father’] behaviors, the Lighthouse report concludes by
recommending extensive and long-term services which should be
implemented and completed before reunification can safely occur.
15. [Mother’s] evaluation from Lighthouse reveals a concerning
substance abuse history, [Mother’s] own emotional issues, and her
persistent attachment to an “unhealthy relationship” with [Father].
According to the examiner, [Mother] was “less than forthcoming when asked
to discuss the dysfunction that occurred in her relation with [Father]” and
“meets the criteria for Dependent Personality Disorder.” * * * She
acknowledges that she is “sometimes too withdrawn,” both in providing
affection and comfort with [the Child] and in intervening when [Father’s]
behavior is inappropriate. [Mother] remains with [Father] despite his
criminal history, including a sexually-oriented offense. She and [Father]
both have engaged in drug abuse and illegal sales of controlled substances.
She describes [Father] as a “relaxed and playful parent” in contrast to the
observation of others and denies episodes of domestic violence and discord
despite contrary observations of Children Services and a record of law
enforcement visits to her home. Most pointedly, the examiner observes:
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 10
Per the RCCS, [Children Services] [Mother] did not intervene to
correct [Father’s] behaviors, despite reports that [the Child] sought solace
from [Mother] and agency representatives. This reported observation
reveals serious concerns with [Mother’s] perception of and insight into
[Father’s] interactions with [the Child]. Without insight into [Father’s]
problematic behaviors[,] [Mother] will not be able to intervene and protect
her child or correct [Father].
* * * The Lighthouse report for [Mother], like that for [Father],
concludes by recommending extensive and long-term services which
should be implemented and completed before reunification can safely
occur.
July 29, 2021 Magistrate’s Decision at 2-7, unpaginated.
{¶9} After analyzing the applicable law, the magistrate ordered all of Parents’
residual parental rights be terminated and permanent custody of the Child be granted to
RCCS. The magistrate found the Child had been in the temporary custody of RCCS for
more than twelve months of a consecutive 22-month period, and the Child could not be
placed with either Mother or Father within a reasonable period of time and should not be
placed with Parents. The magistrate also found it was in the Child’s best interest to grant
permanent custody to RCCS. Parents filed objections to the magistrate’s decision on
August 12, 2021.
{¶10} Via Judgment Entry filed August 31, 2021, the trial court overruled Parents’
objections. The trial court found Parents failed to request Findings of Fact and
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 11
Conclusions of Law and failed to provide a transcript of the permanent custody hearing.
The trial court concluded, “to the extent that any objection may related to the Magistrate’s
Findings of Fact, the Court overrules the same summarily.” Aug. 31, 2021 Judgment
Entry at 2. The trial court further found, “No error of law or other defect appears on the
face of the Magistrate’s Decision.” Id.{¶11} It is from this judgment entry, Mother and Father individually appeal.
{¶12} In Richland App. No. 21CA70, Father raises the following assignments of
error:
I. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S
MOTION FOR PERMANENT CUSTODY, WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT’S RULING, GRANTING APPELLEE’S
MOTION FOR PERMANENT CUSTODY, WAS IN ERROR, BECAUSE
APPELLEE DID NOT SHOW THAT IT HAD MADE “REASONABLE
EFFORTS” TO REUNITE THE FAMILY PURSUANT TO R.C. 2151.419.
III. THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO
SUPPLEMENT APPELLANT’S OBJECTIONS TO THE MAGISTRATE’S
DECISION WITH A TRANSCRIPT OF PROCEEDINGS CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL AND VIOLATED
APPELLANT’S RIGHT TO DUE PROCESS UNDER ARTICLE I, SECTION
10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 12
IV. THE FAILURE OF APPELLANT’S TRIAL COUNSEL TO
OBJECT TO IMPROPER TESTIMONY DURING THE DISPOSITION
HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS UNDER
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
V. THE CUMULATIVE ERRORS OF APPELLANT’S TRIAL
COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS UNDER
ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
{¶13} In Richland App. No. 21CA71, Mother raises the following assignments of
error:
I. THE PARENTS RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL.
II. THE COURT ERRED IN FINDING THAT THE AGENCY MADE
REASONABLE EFFORTS “TO PREVENT THE REMOVAL OF THE CHILD
FROM THE CHILD’S HOME, TO ELIMINATE THE CONTINUED
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 13
REMOVAL OF THE CHILD FROM THE CHILD’S HOME, OR TO MAKE IT
POSSIBLE FOR THE CHILD TO RETURN SAFELY HOME.”
III. THE COURT ERRED IN RECOGNIZING AND GIVING ANY
CREDENCE TO THE ASSESSMENTS OF THE PARENTS’ CAPACITY TO
PARENT THE CHILD IN A SAFE AND COMPETENT MANNER.
IV. THE COURT ERRED IN GRANTING PERMANENT CUSTODY
TO RCCS.
V. THE COURT ERRED IN HOLDING A HEARING ON THE
MOTION OF RCCS.
{¶14} These cases come to us on the expedited calendar and shall be considered
in compliance with App. R. 11.2(C).
FATHER
I
MOTHER
IV
{¶15} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will not
be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 14
{¶16} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long term foster care.
{¶17} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶18} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶19} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 15
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶20} The trial court specifically found the Child could not be placed with Mother
or Father within a reasonable period of time and should not be placed with them pursuant
to R.C. 2151.414(E)(1) and (E)(2).
{¶21} R.C. 2151.414 provides, in relevant part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
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to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code.
{¶22} As set forth in our Statement of the Facts and Case, supra, we find there
was sufficient and substantial competent evidence Parents failed to remedy the problems
which initially caused the removal of the Child from their home. Although Parents
participated in their case plan services, their progress was insufficient. Parents attended
parenting education, however, their caseworker and the parenting educator both believed
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 17
Parents would benefit from additional parenting education. Parents were resistant to and
sporadic with their mental health treatment.
{¶23} Mother had only recently become less cold and distant with the Child. When
Father acted inappropriately with the Child and visitation supervisors, Mother failed to
intervene to correct Father’s behaviors. Dr. Thomas diagnosed Mother with Dependent
Personality Disorder. Dr. Thomas noted Mother did not have insight into Father’s
problematic behavior, making it difficult for her to intervene and protect the Child, or
correct Father. Dr. Thomas recommended extensive and long-term services be
implemented and completed before reunification could safely occur.
{¶24} Father was terminated from treatment at Mansfield Opiate Recovery for
attempting to sell his medication and for causing a disturbance at the facility. Although
Father indicated he was engaged in medication assisted therapy at Buckeye Opiate
Recovery, information regarding his participation and any success resulting therefrom
was not provided to the trial court. Dr. Thomas diagnosed Father with Other Specified
Personality Disorder with antisocial and narcissistic traits. Father had a long history of
criminal, violent, and dangerous behaviors, and such behaviors had continued despite
his being in his late 50s. Father had anger management and impulse control problems.
Father had a conviction for felony domestic violence and was imprisoned for gross sexual
imposition. He had been convicted of disorderly conduct in late 2020. As with Mother,
Dr. Thomas recommended extensive and long-term services be implemented and
completed before reunification could safely occur.
{¶25} The trial court also found, pursuant to R.C. 2151.414(B)(1)(d), the Child had
been in the temporary custody of RCCS for a period of time in excess of twelve of the
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prior twenty-two consecutive months. The 12 of 22 finding alone, in conjunction with a
best interest finding, is sufficient to support the grant of permanent custody. In re Calhoun,
5th Dist. No. 2008CA00118, 2008-Ohio-5458, ¶ 45.
{¶26} The evidence presented during the best interest portion of the hearing
revealed the Child has a close and loving relationship with her foster parents. When the
Child was first placed with the foster family, she engaged in defiant behavior and
tantrums. However, the issues have resolved over time. The Child is comfortable with
her daily routine and feels “part of the family.” She gets along with her foster siblings and
the family dog. The foster family has the economic and emotional resources to provide
the Child with everything she needs.
{¶27} Based upon the foregoing, we find the trial court's finding the Child could
not be placed with Parents within a reasonable period of time or should not be placed
with them is not against the manifest weight of the evidence. We further find the trial
court's finding it was in the Child's best interests to grant permanent custody to RCCS is
not against the manifest weight of the evidence.
{¶28} Father’s first assignment of error and Mother’s fourth assignment of error
are overruled.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 19
FATHER
II
MOTHER
II
{¶29} In their second assignments of error, Parents argue the trial court erred in
granting permanent custody of the Child to RCCS because the Department failed to make
reasonable efforts to reunify the Child with them.
{¶30} The Ohio Revised Code imposes a duty on the part of children services
agencies to make reasonable efforts to reunite parents with their children where the
agency has removed the children from the home. R.C. 2151.419. “Case plans are the
tools that child protective service agencies use to facilitate the reunification of families
who * * * have been temporarily separated.” In re Evans, 3d Dist. Allen No. 1-01-75, 2001
WL 1333979, *3, 2001 Ohio App. LEXIS 4809, 3 (Oct. 30, 2001). To that end, case plans
establish individualized concerns and goals, along with the steps that the parties and the
agency can take to achieve reunification. Id.{¶31} “ ‘Reasonable efforts means that a children's services agency must act
diligently and provide services appropriate to the family's need to prevent the child's
removal or as a predicate to reunification.’ ” In re H.M.K., 3d Dist. Wyandot Nos. 16-12-
15 and Wyandot Nos. 16-12-16, 2013-Ohio-4317, ¶ 95, quoting In re D.A., 6th Dist. Lucas
No. L-11-1197, 2012-Ohio-1104, ¶ 30. “In determining whether the agency made
reasonable efforts [pursuant to R.C. 2151.419(A)(1)] to prevent the removal of the child
from the home, the issue is not whether the agency could have done more, but whether
it did enough to satisfy the reasonableness standard under the statute.” In re Lewis, 4th
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 20
Dist. No. 03CA12, 2003-Ohio-5262, at ¶ 16. “ ‘Reasonable efforts’ does not mean all
available efforts.” Id. A “reasonable effort” is “* * * an honest, purposeful effort, free of
malice and the design to defraud or to seek an unconscionable advantage.” In re Weaver,
79 Ohio App.3d 59, 63, 606 N.E.2d 1011(12th Dist. 1992).
{¶32} As set forth in our Statement of the Case and Facts, supra, RCCS made
reasonable efforts to reunite Mother and Father with the Child by establishing a workable
case plans which included services to address concerns with Parents’ mental health
issues, substance abuse issues, and parenting skills. Parents participated in parenting
education. However, Father’s behavior at visits had, at times, been inappropriate and
disturbing to the Child and Family Support Specialists. Mother was often cold and distant
with the Child. Parents were “resistant and sporadic as to their participation in mental
health counseling.” July 29, 2021 Magistrate’s Decision, Findings of Fact 9. Mother had
some success with her substance abuse treatment and counseling. Father was
terminated from treatment for attempting to sell his medication and for causing a
disturbance at the facility of Mansfield Opiate Recovery.
{¶33} Mother maintains “RCCS failed repeatedly to grant additional visitation time
that would have allowed the parents to exercise and demonstrate the skills they obtained
in their parenting classes.” Brief of Mother-Appellant at 13. “The lack of visitation does
not constitute a failure to use reasonable efforts.” In the Matter of Y.M., Q.D., M.D., &
Y.M., 5th Dist. Tusc. Nos. 2021 AP 09 0020, 2021 AP 09 0021, 2021 AP 09 0022, & 2021
AP 09 0023, 2022-Ohio-677, ¶59.
{¶34} Father and Mother both assert RCCS did not provide them with an
opportunity to follow through with the recommendations of the psychological assessments
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 21
and failed to assist Parents in engaging in certain services the evaluator recommended.
The trial court found the Child had been in the temporary custody of RCCS for twelve or
more months of a consecutive 22-month period. Following Parents’ psychological
evaluations, Dr. Aimee Thomas of Lighthouse Family Center concluded extensive and
long-term services needed to be implemented and completed before reunification could
safely occur. We find the Child deserved permanency in a safe and stable environment.
The Child should not be kept in limbo waiting for Parents to complete services. The
ultimate welfare of a child is the polestar or controlling principle to be observed. See, In
re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
{¶35} Further, the record reflects the trial court made several reasonable efforts
findings prior to the permanent custody hearing.1 A reasonable efforts determination is
not required at a permanent custody hearing under R.C. 2151.353(A)(4) when the record
demonstrates such determination was made earlier in the proceedings. In re N.R., 8th
Dist. Cuyahoga No. 110144, 2021-Ohio-1589, ¶ 38, citing In re A.R., 8th Dist. Cuyahoga
No. 109482, 2020-Ohio-5005, ¶ 32. However, if the agency has not established
reasonable efforts have been made prior to the permanent custody hearing, then it must
demonstrate such efforts at that time. In re N.R. at ¶ 38, citing In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 43. In this case, after each hearing which resulted
in the removal of the Child from Parents' custody or continued her placement outside the
home, the trial court found RCCS used reasonable efforts to prevent the Child’s continued
1See, e.g., September 9, 2019 Magistrate’s Temporary Order; October 10, 2019 Magistrate’s Temporary
Order; October 30, 2019 Magistrate’s Decision; April 8, 2020 Magistrate’s Decision; July 30, 2020
Magistrate’s Decision and Order; and January 20, 2021 Magistrate’s Order.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 22
removal or to make it possible for her to safely return home. See R.C. 2151.419(A)(1). At
no time did Father or Mother challenge the reasonable efforts findings.
{¶36} Based upon the foregoing, we find RCCS used reasonable efforts to reunify
the Child with Parents.
{¶37} Father and Mother's second assignments of error are overruled.
FATHER
III, IV, V
MOTHER
I
{¶38} Father’s third, fourth, and fifth assignments of error and Mother’s first
assignment of error raise claims of ineffective assistance of counsel. In Father’s third
assignment of error and Mother’s first assignment of error, Parents contend trial counsel
was ineffective for failing to supplement their objections to the magistrate’s July 29, 2021
decision and failing to file a transcript of the permanent custody proceedings. In his fourth
assignment of error, Father asserts trial court was ineffective for failing to object to the
testimony of RCCS caseworker Catherine Cook. In his fifth assignment of error, Father
maintains he was denied his right to the effective assistance of counsel and his right to
due process as a result of the cumulative errors of trial counsel.
{¶39} “A parent is entitled to the effective assistance of counsel in cases involving
the involuntary termination of his or her parental rights.” In re B.J. & L.J., 12th Dist. Warren
Nos. CA2016-05-036 and Warren Nos. CA2016-05-038, 2016-Ohio-7440, ¶ 68. This is
because “parental rights involve a fundamental liberty interest, procedural due process,
which includes the right to effective assistance of counsel * * *.” In re Tyas, 12th Dist.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 23
Clinton No. CA2002-02-010, 2002-Ohio-6679, ¶ 4, citing In re Heston, 129 Ohio App.3d
825, 827, 719 N.E.2d 93 (1998).
{¶40} “In permanent custody proceedings, where parents face losing their
children, we apply the same test as the test for ineffective assistance of counsel in criminal
cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40.
{¶41} To prove an allegation of ineffective assistance of counsel, an appellant
must satisfy a two-prong test. First, an appellant must establish counsel's performance
has fallen below an objective standard of reasonable representation. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Second, an
appellant must demonstrate he or she was prejudiced by counsel's performance. Id . To
show he or she has been prejudiced by counsel's deficient performance, an appellant
must prove, but for counsel's errors, the result of the trial would have been different.
Bradley, at paragraph three of the syllabus.
{¶42} An appellant bears the burden of proof on the issue of counsel's
effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In Ohio,
a licensed attorney is presumed competent. Id.Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 24
Failure to Supplement Objections and Failure to File Transcript
{¶43} “[A]n appellant's arguments in regard to claims of ineffective assistance of
counsel in the context of a magistrate's hearing are not waived by trial counsel's failure
to raise such objections at the trial court level.” Matter of B.J., 5th Dist. Richland No. 18
CA 106, 2019-Ohio-1062, ¶ 34. (Citation omitted). “By extension, in cases where an
appellant seeks a Strickland review on the grounds that his or her trial counsel failed to
object under Juv.R. 40 and failed to timely obtain a transcript of the magistrate's hearing
for the trial court judge to review, an appellate court may, in the interest of justice, examine
the evidence presented to the magistrate via the transcript and exhibits, despite the fact
that they were not available below.” Id.; see, also, In re Oliver, 5th Dist. Licking No. 2005-
CA-40, 2005-Ohio-5792, ¶¶ 21-24.
{¶44} Parents suggest had trial counsel supplemented their objections and
requested the transcript of the proceedings, the trial court would not have granted
permanent custody to RCCS. We find this argument is purely speculative and insufficient
to satisfy their burden of demonstrating prejudice. We have reviewed the transcript of the
proceedings and find there was clear and convincing evidence to support the trial court’s
decision to grant permanent custody of the Child to RCCS.
Failure to Object to Testimony of Catherine Cook
{¶45} Father further asserts he was denied the effective assistance of counsel as
the result of trial counsel’s failure to object to portions of the testimony of Catherine Cook,
an RCCS caseworker, which, according to Father, inferred nefarious behavior on the part
of individuals with whom he was associated.
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 25
{¶46} The magistrate did not make any findings relative to this portion of Cook’s
testimony. In fact, the magistrate specifically found the testimony “rais[ed] an implication
that [Father] might be dealing drugs.” Tr. at 247. The magistrate indicated, I will be
disregarding things that lie in the area of supposition and implication, and relying solely
on the things that play into, to clear and convincing evidence.” Id. The magistrate added,
“I know that’s a possibility. It is not something I can consider based upon what I’ve heard.”
Id. at 248. Accordingly, we find Father cannot demonstrate he was prejudiced by trial
counsel’s failure to object to Cook’s testimony.
Cumulative Errors
{¶47} Father also argues trial counsel's cumulative errors and omissions violated
his constitutional right to the effective assistance of counsel. However, because none of
Father's individual claims of ineffective assistance has merit, he cannot establish a right
to relief simply by joining those claims together. “Where no individual, prejudicial error
has been shown, there can be no cumulative error.” State v. Jones, 2d Dist. Montgomery
No. 20349, 2005–Ohio–1208, ¶ 66 (Citation omitted).
{¶48} Based upon the foregoing, we find Parents are unable to establish they
were prejudiced as the result of trial counsel’s alleged deficient performance.
{¶49} Father’s third, fourth, and fifth assignments of error and Mother’s first
assignment of error are overruled.
MOTHER
III
{¶50} In her third assignment of error, Mother submits the trial court erred in
recognizing and giving credence to the assessments of Dr. Aimee Thomas relative to
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 26
Parents’ capacity to parent the Child in a safe and competent manner. Mother contends,
because neither Parents nor RCCS asked the trial court to recognize Dr. Thomas as an
expert, and Dr. Thomas’ testimony and reports do not establish she has any expertise on
parenting, Dr. Thomas offered prospective opinions, which the trial court should not have
relied upon in reaching its decision on permanent custody.
{¶51} We note, at the commencement of the hearing on RCCS’s motion for
permanent custody, Parents stipulated to the admission of the Dr. Thomas’ written
psychological and parenting evaluations. Accordingly, the information contained therein
was properly before the trial court.
{¶52} Mother concedes neither she nor Father objected to the admission of Dr.
Thomas' testimony, to her qualifications, or to RCCS’s failure to move for her designation
as an expert. “Normally, the failure to timely object at trial to allegedly inadmissible
evidence waives all claims of error except for plain error.” State v. Bahns, 185 Ohio
App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 19 (Citation omitted).
{¶53} “A ‘plain error’ is obvious and prejudicial although neither objected to nor
affirmatively waived which, if permitted, would have a material adverse effect on the
character and public confidence in judicial proceedings.” Schade v. Carnegie Body Co.,
70 Ohio St.2d 207, 209 (1982). “In appeals of civil cases, the plain error doctrine is not
favored and may be applied only in the extremely rare case involving exceptional
circumstances where error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,
79 Ohio St.3d 116, syllabus (1997).
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 27
{¶54} Dr. Thomas’ testimony mirrors her written reports. In her written reports and
during her testimony, Dr. Thomas discussed the tests she administered to both Mother
and Father, the information she gathered from each, and her observations and
conclusions. Parents were provided with a full and fair opportunity to cross-examine Dr.
Thomas regarding her methods of evaluating parents, observations, and findings as well
as her qualifications.
{¶55} Based upon the entire record in this matter, we find no plain error in the
trial court’s admission of Dr. Thomas’ testimony. Even if the trial court’s admission of the
testimony was in error, such error was harmless as the magistrate’s decision only
references Dr. Thomas’ written reports, not Dr. Thomas’ testimony.
{¶56} Mother’s third assignment of error is overruled.
MOTHER
V
{¶57} In her final assignment of error, Mother argues the trial court erred in
conducting a hearing on RCCS’s motion for permanent custody. Specifically, Mother
claims the trial court had no authority to conduct a hearing on RCCS’s motion for
disposition because RCCS failed to expressly state the motion was brought under R.C.
2151.413. We disagree.
{¶58} An agency may obtain permanent custody of a child in two ways. In re J.F.,
2018-Ohio-96, 102 N.E.3d 1264, ¶ 44 (8th Dist.), citing In re E.P., 12th Dist. Fayette Nos.
CA2009-11-022 and CA2009-11-023, 2010-Ohio-2761, 2010 WL 2415606, ¶ 22. An
agency may first obtain temporary custody of the child and then file a motion for
permanent custody under R.C. 2151.413, or an agency may request permanent custody
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 28
as part of its abuse, neglect or dependency complaint under R.C. 2151.353(A)(4). In re
J.F. at ¶ 44.
{¶59} “R.C. 2151.413 sets forth guidelines for determining when a public
children-services agency or private child-placing agency must or may file a motion for
permanent custody,” and “R.C. 2151.414 sets forth the procedures a juvenile court must
follow and the findings it must make before granting a motion filed pursuant to R.C.
2151.413.” In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 8 and
9.
{¶60} R.C. 2151.413 governs the timing of the filing of a motion for permanent
custody. RCCS filed its motion for disposition on January 8, 2021, after being awarded
temporary custody of the Child in September, 2019, in accordance with R.C. 2151.413.
There is nothing in the language of R.C. 2151.413 which requires the moving agency to
specifically reference the statute in its motion. Assuming, arguendo, such a requirement
exists, we find any error in the case sub judice was harmless. Had Mother objected to
RCCS’s failure to reference R.C. 2151.413 in its motion for disposition, the trial court
could have, and most likely would have, allowed RCCS to amend its motion to include
the statute. Accordingly, we find the trial court did not err in conducting a hearing on the
motion.
{¶61} Alternatively, Mother asserts RCCS failed to comply with R.C.
2151.413(E).
{¶62} R.C. 2151.413(E) provides “[a]ny agency that files a motion for permanent
custody under [R.C. 2151.413] shall include in the case plan of the child who is the subject
of the motion, a specific plan of the agency's actions to seek an adoptive family for the
Richland County, Case Nos. 2021 CA 0070 & 2021 CA 0071 29
child and to prepare the child for adoption.” While R.C. 2151.413(E) requires the agency
which files a motion for permanent custody to include an adoption plan in the child's case
plan, “the statute does not include a ‘temporal requirement’ to state ‘when such an
adoption plan must be added to the existing case plan.’ ” In re J.G., 9th Dist. Wayne No.
14CA0004, 2014-Ohio-2570, ¶ 8 (Emphasis sic.), quoting In re T.R., 120 Ohio St.3d 136,
2008-Ohio-5219, ¶ 9-10. An adoption plan can be added to an existing case plan in
accordance with the requirements of R.C. 2151.413(E) even after a motion for permanent
custody has been granted. See, In re T.R. at ¶ 12.
{¶63} While Mother suggests RCCS was required to be submitted a case plan
for adoption with its motion for permanency, we find no such requirement exists. RCCS
could, and did, comply with its obligations under R.C. 2151.413(E) by submitting adoption
plan subsequent to the permanent custody hearing.
{¶64} Mother’s fifth assignment of error is overruled.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur