In re L.L. , 2022 Ohio 4492 ( 2022 )

[Cite as In re L.L., 2022-Ohio-4492.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: L.L. C.A. No. 30266
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN19-11-979
DECISION AND JOURNAL ENTRY
Dated: December 14, 2022
CARR, Presiding Judge.
{¶1} Appellant, N.J. (“Father”), appeals from a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that adopted a magistrate’s decision and placed his child in
the legal custody of a maternal uncle (“Uncle”). This Court affirms.
I.
{¶2} Father is the biological father of L.L., born July 23, 2016. The child’s mother
(“Mother”) did not appeal the trial court’s judgment.
{¶3} On November 26, 2019, Summit County Children Services Board (“CSB”) filed a
complaint, alleging that L.L. was an abused, neglected, and dependent child. A few days earlier,
L.L. was removed from Mother’s custody pursuant to Juv.R. 6, along with her two older half-
siblings, who are not Father’s children and are not parties to this appeal. Ten days later, the agency
filed an amended complaint, which added more recent allegations about Mother’s parenting
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behavior, including her admission that, while she was intoxicated, she had left then three-year-old
L.L. home alone.
{¶4} L.L. was later adjudicated abused, neglected, and dependent and was placed in the
temporary custody of CSB. L.L. was initially placed in the home of Uncle, along with her two
older half-siblings.
{¶5} The original case plan was adopted by the trial court. The case plan required Father,
who had not been actively involved in L.L.’s life, to contact CSB and inform the agency about
whether he intended to assume a parenting role in L.L.’s life. Throughout most of this case, Father
lived in Allegheny County, Pennsylvania. He first contacted CSB about L.L. during June 2020
but did not contact the agency again until he came to a review hearing on August 4, 2020. He
spoke to the caseworker and expressed interest in custody of L.L.
{¶6} The case plan was amended to add reunification services for Father, including that
he would be permitted to visit L.L. Because he had a history of domestic violence, Father was
also required to complete an anger management program, which he did. The case plan further
required CSB to contact the children services agency in Allegheny County through the Interstate
Compact for the Placement of Children (“ICPC”) to investigate Father and his home to determine
whether Father would be a suitable placement. At that time, Father lived in the home of K.W.,
with whom he was involved in a romantic relationship. K.W. owned the home and had been living
there with her own children for an extended period.
{¶7} Father, the home, and those residing there (K.W. and her children) were later
approved through the ICPC investigation. L.L. was placed in that home on April 8, 2021. Father
was required to stay in contact with the Pennsylvania caseworker (“ICPC caseworker”), allow her
to regularly check on L.L. via home visits, and keep the ICPC caseworker apprised of any changes
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in L.L.’s circumstances. The case plan was again amended to reflect that L.L. had been placed
with Father in Pennsylvania. Amendments included that “[L.L.] will need to reside with [Father]
for six months while being monitored by a worker from Pennsylvania before [CSB] can ask for
legal custody to be granted to [Father] with the approval of the state of Pennsylvania.”
{¶8} The ICPC caseworker regularly visited K.W.’s home in which L.L. was living with
Father and observed that L.L. was doing well there. She further observed, however, that K.W. was
acting as the primary caregiver of L.L. and her own children. During early September 2021, K.W.
and Father ended their relationship and, without informing the ICPC caseworker, Father and L.L.
moved out of K.W.’s home. Because the ICPC caseworker was scheduled to visit the home again
on September 15, 2021, K.W. called her shortly beforehand to cancel the home visit. The ICPC
caseworker then learned for the first time, more than a week after they moved, that Father and L.L.
were no longer living in K.W.’s home. K.W. informed her that she believed Father and L.L. were
living nearby but she did not know the location.
{¶9} The ICPC caseworker immediately sent Father a text message, but he did not
respond. She later reached him via a telephone call, but he did not disclose where he and L.L.
were living. Father told her that they had been staying with a woman who did not want the
caseworker to come to her home, so they would move elsewhere. Father agreed to meet the ICPC
caseworker at a hotel, but the caseworker did not believe that Father and L.L. were living there.
The caseworker eventually received information that Father and L.L. had stayed in the homes of
two different women, but she had not met either woman or had the opportunity to investigate them
or their homes. Because of Father’s lack of stable housing and his failure to cooperate with the
ICPC caseworker, Pennsylvania revoked its ICPC approval of Father as a placement for L.L.
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{¶10} Meanwhile, before Father and L.L. moved out of K.W.’s home, Father had not been
cooperating with the caretakers of her older two half-siblings in Ohio to arrange sibling visits. On
August 30, 2021, the trial court ordered Father to arrange for L.L. to have visits with her half-
siblings at least one weekend a month. By that time, only one of L.L.’s half-siblings remained in
the home of Uncle and the other had been placed with that child’s father. On September 17, 2021,
L.L. returned to Summit County, apparently for court-ordered visitation with her half-siblings.1
{¶11} While L.L. was in Ohio, because Pennsylvania had revoked its ICPC approval, the
child was again placed in Uncle’s home. Based on Father’s erratic behavior observed by the CSB
caseworker, and information received from the ICPC caseworker, CSB also became concerned
about Father’s mental health. Father had been evasive and dishonest with them, had expressed
increasingly paranoid thoughts, and, according to the CSB caseworker, his statements were
“nonsensical at times.” The paternal grandmother also contacted the CSB caseworker to express
concerns about Father’s unstable mental health.
{¶12} Because L.L. had returned to Uncle’s home and was again doing well there, and
this case had been pending for nearly two years, CSB moved to place L.L. in the legal custody of
Uncle. Father alternatively moved for L.L. to be placed in his legal custody. Following a hearing
before a magistrate, L.L. was placed in the legal custody of Uncle. The trial court adopted the
magistrate’s decision and entered an independent judgment placing L.L. in the legal custody of
Uncle. Father did not file objections to the magistrate’s decision. Instead, after his
1
The specific details of L.L.’s trip to Ohio, including who transported her, are not set forth
in the record.
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trial counsel withdrew and he was appointed appellate counsel, he filed an appeal of the trial
court’s judgment. His three assignments of error will be addressed together to facilitate review.
II.
ASSIGNMENT OF ERROR I
[FATHER] WAS DENIED HIS FUNDAMENTAL AND CONSTITUTIONAL
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS MADE
APPLICABLE TO THE STATES BY AND THROUGH THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT GRANTED
LEGAL CUSTODY TO MATERNAL UNCLE WHEN THE AGENCY DID NOT
PROVIDE REASONABLE REUNIFICATION EFFORTS.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR WHEN IT
GRANTED LEGAL CUSTODY OF THE MINOR CHILD TO MATERNAL
UNCLE AND DENIED FATHER’S MOTION FOR LEGAL CUSTODY.
{¶13} Father challenges the trial court’s legal custody decision as not being supported by
the evidence and because he asserts that CSB did not provide him with reasonable reunification
efforts. Father does not dispute that he did not file objections to the magistrate’s decision.
{¶14} To avoid forfeiture of these arguments, Father was required to comply with Juv.R.
40(D). Juv.R. 40(D)(3)(b)(iv) provides, in relevant part, that “[e]xcept for a claim of plain error,
a party shall not assign as error on appeal the court’s adoption of any factual finding or legal
conclusion * * * unless the party has objected to that finding or conclusion as required by Juv.R.
40(D)(3)(b).” Because Father did not file objections, he concedes that he did not preserve the
issues raised in his second and third assignments of error for appellate review and has confined his
argument to a plain error standard of review. His first assignment of error is that his trial counsel
was ineffective for failing to file timely objections to the magistrate’s decision.
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{¶15} Under either standard of review, Father has the burden to demonstrate substantial
error and prejudice. To establish a claim of ineffective assistance of counsel, Father must
demonstrate that his trial counsel’s performance was deficient, and that the deficient performance
prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice,
he must show that there is a reasonable probability that, but for trial errors, the result of the
proceeding would have been different. Id. at 694.
The standard of review for plain error is similar to the standard for reviewing a
claim of ineffective assistance of counsel, although plain error requires more
certain proof of prejudice to the appellant. While ineffectiveness requires proof of
a reasonable probability that the trial result would have been different but for the
error, plain error under the criminal standard requires proof that the trial
result clearly would have been otherwise. State v. Murphy, 91 Ohio St.3d 516, 559
(2001) (Cook, J, concurring). The civil plain error standard requires the
demonstration of an even greater level of error, as it must be one that rises to the
level of challenging the legitimacy of the underlying judicial process
itself. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. This Court has
not determined which is the appropriate plain error standard to apply in cases
involving [] parental rights and it need not do so now. See In re D.S., 9th Dist.
Summit No. 24619, 2009-Ohio-3167, ¶ 10.
In re J.S., 9th Dist. Summit Nos. 28342 and 28344, 2017-Ohio-75, ¶ 9.
{¶16} This Court will review each of Father’s alleged errors to determine whether he has
demonstrated error that rose to the high level required under either the ineffective assistance
standard or the plain error standard of review. First, Father asserts that his trial counsel was
ineffective for failing to file objections to the magistrate’s decision. Although he did not specify
what objections trial counsel should have raised, this Court will presume that he is referring to the
arguments raised in his remaining assignments of error. Father’s second assignment of error is
that CSB did not make reasonable efforts to place L.L. with Father or prevent her removal from
his custody. His third assignment of error is that the trial court erred in concluding that legal
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custody to Uncle, rather than Father, was in the best interest of L.L. We will address each argument
in turn.
Reasonable reunification efforts
{¶17} Father first points to the trial court’s finding that CSB made reasonable efforts to
reunify L.L. with Father, attempting to demonstrate plain error or that trial counsel was ineffective
for failing to challenge the reasonable efforts finding. No one disputes that CSB had the obligation
to make reasonable reunification efforts in this case. This Court has explained:
The law imbues parents with the substantial right to raise their children and
concomitantly entitles them to all legally permissible procedural and substantive
protections. In re C.S., 9th Dist. Summit Nos. 29927, 29929, and 29938, 2021-
Ohio-3182, ¶ 25. These include the child welfare agency’s obligation to
make reasonable efforts to reunify children with one or both parents. Id. The case
plan is the tool used by the agency to facilitate family reunification efforts. In re
H.S., 9th Dist. Summit Nos. 28944 and 28948, 2018-Ohio-3360, ¶ 18. In fact, the
overriding purpose of the case plan is to allow the agency to assist the parents in
remedying the conditions underlying a child’s removal so that the child can be
returned safely to one or both parents’ custody. In re S.R., 9th Dist. Summit No.
27209, 2014-Ohio-2749, ¶ 45.
In re K.J., 9th Dist. Summit No. 29915, 2021-Ohio-4413, ¶ 18.
{¶18} In this case, the record reveals that CSB provided Father with reasonable
reunification efforts throughout this case, but that Father’s own conduct was the obstacle to him
receiving legal custody of L.L. The original case plan required Father to contact CSB if he wanted
to assume a parenting role in the life of L.L. The case plan was adopted as an order of the court
on March 4, 2020. Five months later, Father spoke to the CSB caseworker and expressed interest
in custody of L.L. CSB promptly amended the case plan to add reunification services for Father
and Father participated in those services. After a period of extended visits with L.L. and approval
for ICPC placement in Pennsylvania, CSB facilitated the placement of L.L. with Father in the
Pennsylvania home where he resided with K.W. and her children.
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{¶19} Under the conditions of Father’s ICPC placement and the amended case plan,
Father was required to maintain a stable home with L.L. for at least six months and keep the ICPC
caseworker apprised of any changes in L.L.’s living circumstances. Father failed to comply with
either of those requirements, however. Approximately five months after L.L. was placed with
Father, without notifying the ICPC caseworker, Father and L.L. moved out of K.W.’s home.
{¶20} More than one week later, the ICPC caseworker discovered that Father had
relocated with L.L. only because K.W. called her to cancel an upcoming scheduled home visit.
When the ICPC caseworker was able to reach Father, he failed to inform her where he and L.L.
were staying. He did not secure a stable home that could be inspected and approved for placement
of the child. L.L. was ultimately returned to Uncle’s home, not because of a lack of reunification
efforts in this case, but because Father failed to comply with the requirements of the case plan and
ICPC placement.
{¶21} Even by the time of the hearing in January 2022, Father had not demonstrated that
he had a stable home. Several witnesses testified that they did not know where Father was living,
or even if he was in Ohio or Pennsylvania. Father had told people throughout this case that he
planned to move to Florida. Father testified at the hearing that he was staying with a friend in
Pennsylvania, but he still planned to move to Florida.
{¶22} A few weeks before the hearing, Father told the guardian ad litem that he was living
with the paternal grandmother and arranged for a meeting at the grandmother’s home. The
guardian ad litem believed that he was speaking to Father where he was residing. The grandmother
later reached out to the CSB caseworker, however, to inform her that Father was not living in her
home because he was not emotionally stable, and she did not want him living there. The
grandmother did not know where Father was living at that time. The grandmother had a lengthy
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conversation with the caseworker, during which she expressed concerns about Father’s paranoia
and mental instability.
{¶23} On appeal, Father asserts that CSB did not provide him with reasonable
reunification efforts because, after becoming concerned about his mental health, it did not amend
the case plan to add mental health services for Father. When concerns first arose about Father’s
mental health, however, Pennsylvania had revoked its ICPC approval because of Father’s lack of
housing and failure to cooperate with the ICPC caseworker, and L.L. was returned to Uncle’s
home.
{¶24} In addition to Father’s failure to cooperate with the children services agencies in
Pennsylvania and Summit County, CSB was running out of time to find L.L. a permanent home.
By that time, this case had been pending for nearly two years and the trial court lacked authority
to grant another extension of temporary custody to allow Father to work on mental health and other
reunification services. See R.C. 2151.353(G); R.C. 2151.415(D)(4). Because L.L. was again
doing well in Uncle’s home, CSB decided to move for legal custody to Uncle.
Legal custody to Uncle
{¶25} Next, Father challenges the trial court’s decision to award legal custody of L.L. to
Uncle. An award of legal custody must be supported by a preponderance of the evidence. In re
M.F., 9th Dist. Lorain No. 15CA010823, 2016-Ohio-2685, ¶ 7. “Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable, persuasive, and
possesses greater probative value.” (Internal quotations omitted.) Id.{¶26} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
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of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal citations and quotations omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,
this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶27} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 12. No specific test or set of criteria is set forth by statute regarding an award of legal custody,
but Ohio courts agree that the juvenile court must base its decision to award legal custody on the
best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-7994, ¶ 18,
quoting In re N.P., 9th Dist. Summit No. 21707, 2004-Ohio-110, ¶ 23. The juvenile court is guided
by the best interest factors enumerated in R.C. 2151.414(D) relating to permanent custody. In re
B.G., 9th Dist. Summit No. 24187, 2008-Ohio-5003, ¶ 9, citing In re T.A., 9th Dist. Summit No.
22954, 2006-Ohio-4468, ¶ 17. Those factors include the interaction and interrelationships of the
child, the child’s wishes, the custodial history of the child, and the child’s need for permanence.
R.C. 2151.414(D)(1)(a)-(e)2; see also In re B.C., 9th Dist. Summit Nos. 26976 and 26977, 2014-
Ohio-2748, ¶ 16.
{¶28} The juvenile court may also consider the best interest factors in R.C. 3109.04(F)(1).
In re K.A., 9th Dist. Lorain Nos. 15CA010850 and 15CA010860, 2017-Ohio-1, ¶ 17. While many
factors overlap with those set forth in R.C. 2151.414(D)(1), a separate factor relevant here is the
2
R.C. 2151.414(D)(1)(e) also requires the trial court to consider whether any of the factors
set forth in R.C. 2151.414(E)(7)-(11) apply to this case, but none of those factors are relevant here.
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proposed custodian’s likelihood to honor and facilitate visitation or parenting time. R.C.
3109.04(F)(1)(f).
{¶29} Father’s interaction with L.L. began approximately five months after the case plan
was adopted. Their visitation went well and expanded until L.L. was placed with Father in K.W.’s
home for approximately five months. Their interaction was positive, as observed by the ICPC
caseworker, but K.W. owned the stable home and had assumed most of the parenting duties. L.L.
returned to Ohio and was placed with Uncle during late September 2021. From that time until the
time of the hearing four months later, Father did not come to visit L.L. Father told the caseworker
that he had not visited because it was too painful to see L.L. living with Uncle.
{¶30} Uncle’s interaction with L.L. throughout this case had been positive. L.L. lived
with Uncle for more than a year before the child was placed with Father in Pennsylvania. After
L.L. returned to Uncle’s home, she lived there for another four months before the hearing. One of
the child’s half-siblings also lived in Uncle’s home and Uncle had ensured that L.L. was able to
see her other half-sibling, who lived with that child’s father.
{¶31} Because L.L. was only five years old at the time of the hearing, the guardian ad
litem spoke on her behalf. He opined that legal custody to Uncle was in the child’s best interest
because he had provided her with a stable home for well over a year during this case and the child
was doing well there. The guardian ad litem expressed concerns about Father receiving legal
custody, including that he had been dishonest about where he was living and was increasingly
demonstrating signs of mental instability. The guardian ad litem testified that, when he went to
visit Father in the grandmother’s home, Father became so agitated over simple questions that the
grandmother had to intervene to calm him down.
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{¶32} This case had been pending for over two years by the time of the final dispositional
hearing. L.L. had moved back and forth between temporary placements and needed a legally
secure permanent home. Uncle was prepared to provide the child with a stable, permanent home,
while Father had yet to demonstrate to CSB that he had a suitable home.
{¶33} Finally, the trial court heard evidence that Uncle was willing to facilitate visits
between Father and L.L., as well as between L.L. and her half-sibling, as he had done throughout
this case. Father, on the other hand, had not allowed L.L. to attend visits with her half-siblings
until the court compelled him to do so.
{¶34} Given the evidence before the trial court, Father has failed to demonstrate any error
in the trial court’s reasonable efforts finding or its legal custody decision, much less the level of
error and prejudice required to demonstrate plain error or ineffective assistance of trial counsel.
Father’s assignments of error are overruled.
III.
{¶35} Father’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
JASON D. WALLACE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorneym, for Appellee.
VICTOR O. CHUKWUDELUNZU, Attorney at Law, for Appellee.
NEIL P. AGARWAL, Guardian ad Litem.