In re K.D. , 2018 Ohio 3381 ( 2018 )

[Cite as In re K.D., 2018-Ohio-3381.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
Hon. John W. Wise, P. J.
IN THE MATTER OF: Hon. W. Scott Gwin, J.
Hon. Craig R. Baldwin, J.
K.D.
Case No. 18 CA 0024
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. F2016-
186
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 22, 2018
APPEARANCES:
For Appellee For Appellant Mother
WILLIAM C. HAYES M. SHAWN DINGUS
PROSECUTING ATTORNEY 136 West Mound Street
JEFFREY BOUCHER Suite 100
ASSISTANT PROSECUTOR Columbus, Ohio 43215
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 18 CA 0024 2
Wise, P. J.
{¶1} Appellant-Mother Stephanie D. appeals the decision of the Licking County
Court of Common Pleas, Juvenile Division, which granted permanent custody of her
minor child, K.D., to Appellee Licking County Job and Family Services (“LCJFS”). The
relevant procedural facts leading to this appeal are as follows.
{¶2} Appellant is the mother of two minor children, L.D., born in 2014, and K.D.,
born in 2012.1 Appellant is married to Jamie D., the father of the two children. Both
children were removed from appellant’s home in March 2016 upon a report received by
the agency that the parents had tested positive for methamphetamine. The concerns at
that time included parental substance abuse and unemployment, potential loss of
housing, and previous domestic violence incidents allegedly witnessed by the children.
{¶3} On March 23, 2016, LCJFS filed a complaint alleging dependency in the
Licking County Court of Common Pleas, Juvenile Division. On June 15, 2016, appellant
and Jamie D. appeared in court and stipulated to a dependency finding.
{¶4} A dispositional hearing took place on August 19, 2016. A juvenile court
magistrate issued a decision on September 19, 2016, recommending the maintaining of
temporary custody with the agency. Both parents filed objections, but the trial court
overruled same and adopted the magistrate’s decision via a judgment entry issued on
March 24, 2017.
1 The sibling’s case, as to appellant-mother, is being addressed under a separate
appellate case number. In addition, the father, Jamie D., has filed his own appeal.
Licking County, Case No. 18 CA 0024 3
{¶5} In the meantime, prior to the court’s ruling on the aforesaid objections, the
agency filed a motion for permanent custody on February 17, 2017. The matter was
heard by a magistrate on August 28, 2017, October 18, 2017, and October 20, 2017.
{¶6} After taking the matter under advisement, the magistrate issued a decision
on January 25, 2018, recommending a grant of permanent custody of K.D. and L.D. to
LCJFS.
{¶7} On February 8, 2018, appellant-mother filed objections to the magistrate’s
decision regarding permanent custody.
{¶8} On February 12, 2018, Jamie D. also filed objections to the magistrate’s
decision.
{¶9} The trial court overruled appellant-mother’s objections and approved the
decision of the magistrate on February 14, 2018.
{¶10} The trial court, in a separate judgment entry, also denied the objections of
the father, Jamie D., on February 14, 2018.
{¶11} On March 15, 2018, appellant filed a notice of appeal concerning the former
entry. She herein raises the following five Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED WHEN IT DENIED MOTHER'S REQUEST
FOR A TRANSCRIPT AND SUMMARILY OVERRULED MOTHER'S OBJECTIONS TO
THE MAGISTRATE'S DECISION WITHOUT REVIEWING A TRANSCRIPT OF THE
PERMANENT CUSTODY PROCEEDINGS.
{¶13} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
MOTHER'S MOTION FOR LEAVE TO SUPPLEMENT HER PRELIMINARY
Licking County, Case No. 18 CA 0024 4
OBJECTIONS UPON RECEIPT OF THE TRANSCRIPT OF THE PERMANENT
CUSTODY PROCEEDINGS.
{¶14} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT R.C.
2151.414(B)(1)(d) IS APPLICABLE TO THIS CASE.
{¶15} “IV. THE TRIAL COURT'S FINDING THAT PERMANENT CUSTODY
SHOULD BE GRANTED TO THE LICKING COUNTY DEPARTMENT OF JOB AND
FAMILY SERVICES IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} “V. THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT
MOTHER'S REQUEST FOR AN EXTENSION OF TEMPORARY CUSTODY.
{¶17} “VI. MOTHER'S TRIAL COUNSEL WAS INEFFECTIVE IN HIS
REPRESENTATION OF HER IN THE PERMANENT CUSTODY ACTION.”
I.
{¶18} In her First Assignment of Error, appellant-mother contends the trial court
committed reversible error in overruling her objection to the magistrate’s decision without
awaiting and reviewing a transcript of the permanent custody proceedings. We disagree.
{¶19} Juv.R. 40(D)(3)(b)(iii) states in pertinent part that “[a]n objection to a factual
finding, whether or not specifically designated as a finding of fact under Juv.R.
40(D)(3)(a)(ii), shall be supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not
available. ***.” (Emphasis added). Furthermore, as we have frequently noted, objections
to a magistrate's decision must be specific. See, e.g., In re M.H., 5th Dist. Fairfield No.
2016 CA 43, 2017-Ohio-1110, ¶ 24, citing North v. Murphy, 5th Dist. Tuscarawas No.
2000AP050044, 2001 WL 246419.
Licking County, Case No. 18 CA 0024 5
{¶20} A review of the record in the case sub judice reveals the magistrate issued
a seven-page decision, with thirteen paragraphs of factual findings, concluding with a
recommendation of permanent custody of K.D. and L.D. to the agency. Despite this
attention to detail by the magistrate, appellant’s objection merely states in pertinent part
as follows, with no specific factual findings mentioned:
Now comes [Stephanie D.], Mother of the above named children, by
and through counsel, and respectfully moves this Honor [sic] Court,
pursuant to Juv.R. 40, to reject the decision of the magistrate placing the
children into the permanent custody of the Licking County Department of
Job and Family Services filed January 25, 2018. It is the position of
[Stephanie D.] that an extension of temporary custody was in the best
interest of the minor children based on mother's case-plan progress.
{¶21} Objections to Magistrate’s Decision, February 7, 2018, at 1.
{¶22} The aforesaid objection ended with a statement that appellant’s counsel had
filed a request for a transcript and a request for an extension of time to file “the final
objection,” and that counsel “intend[ed] to provide the [trial] court with a detailed
memorandum in support of the objections after receipt of the transcripts.” Id.
{¶23} Certainly, Juv.R. 40(D)(3)(b)(iii) additionally states that “[i]f a party files
timely objections prior to the date on which a transcript is prepared, the party may seek
leave of court to supplement the objections.” Because this portion of the rule utilizes
“leave of court” language, allowance of supplementation would be at the trial court’s
discretion. See Matter of Estate of Holbrook, 5th Dist. Tuscarawas No. 2016 AP 10 0051,
Licking County, Case No. 18 CA 0024 6
2017-Ohio-4429, ¶ 32, citing Riley v. City of Cincinnati, 1st Dist. Hamilton No. C–73435,
1974 WL 184559.
{¶24} The Staff Note to Juv.R. 40 states that "[t]he last sentence of Juv.R.
40(d)(3)(b)(iii) allows an objecting party to seek leave of court to supplement previously
filed objections where the additional objections become apparent after a transcript has
been prepared." Juv.R. Staff Note (July 1, 2006 Amendment). Thus, while it would not
be unusual for an attorney representing an objecting party to bulk up his or her objections
under Civ.R. 53 or Juv.R. 40 after an opportunity to read and review a trial transcript, we
are unable in this instance to conclude the trial court abused its discretion in denying
appellant an opportunity to do so, given the paucity of her original objection, even though
the rule ordinarily allows thirty days to obtain a transcript. Our decision in In re Wheeler,
5th Dist. Muskingum No. CT 2004-0037, 2005-Ohio-220, is distinguishable, as in that
case the appellant had provided specific objections to factual findings by the magistrate,
as per Juv.R. 40(D)(3)(b)(iii). Wheeler at ¶¶ 18-22.
{¶25} The trial court, in the judgment entry under appeal, denied the objection filed
by appellant, and, having reviewed the audio record and exhibits, approved and adopted
the magistrate’s decision recommending permanent custody to the agency of both
children. Upon review, we find no basis to reverse the trial court’s decision in the
judgment entry under appeal to deny appellant’s objections under Juv.R. 40.
{¶26} Appellant's First Assignment of Error is therefore overruled.
II.
{¶27} In her Second Assignment of Error, appellant contends the trial court
abused its discretion when it denied mother's motion for leave to supplement her
Licking County, Case No. 18 CA 0024 7
preliminary objections upon receipt of the transcript of the permanent custody
proceedings.2
{¶28} We find this argument has been implicitly addressed and resolved in our
discussion of the First Assignment of Error above. Accordingly, we find the trial court
acted within its discretion in denying appellant leave to supplement under Juv.R. 40.
{¶29} Appellant's Second Assignment of Error is therefore overruled.
IV.
{¶30} In her Fourth Assignment of Error, which we will address out of sequence,
appellant argues that the trial court's granting of permanent custody of K.D. to the agency
was against the manifest weight of the evidence. We disagree.
{¶31} As an appellate court, we are not the trier of fact; instead, our role is to
determine whether there is relevant, competent, and credible evidence upon which the
factfinder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App. 3d 768,
936 N.E.2d 1013, 2010–Ohio–3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark
No. CA5758, 1982 WL 2911. It is well-established that the trial court in a bench trial is in
the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th
Dist. Summit No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio
St.2d 230, 227 N.E.2d 212. Furthermore, the trial court, as the fact finder, is free to
believe all, part, or none of the testimony of each witness. See State v. Caldwell (1992),
79 Ohio App. 3d 667, 679, 607 N.E.2d 1096.
2 The trial court did, however, indicate it would grant a request for the transcript, but only
for purposes of an appeal to this Court.
Licking County, Case No. 18 CA 0024 8
R.C. 2151.414(B)(1) Requirements
{¶32} R.C. 2151.414(B)(1) reads as follows: “Except as provided in division (B)(2)
of this section, the court may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to division (A) of this section, by clear and
convincing evidence, that it is in the best interest of the child to grant permanent custody
of the child to the agency that filed the motion for permanent custody and that any of the
following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, *** and the child cannot be placed with either of
the child's parents within a reasonable time or should not be placed with the
child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two month period * * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court * * *.
Licking County, Case No. 18 CA 0024 9
{¶33} In determining whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents (see R.C.
2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more factors
under R.C. 2151.414(E), including whether or not “[f]ollowing the placement of the child
outside the child's home and notwithstanding reasonable case planning and diligent
efforts by the agency 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.” See R.C. 2151.414(E)(1). Thus, R.C.
2151.414(E) sets forth a list of sixteen predicate findings, one of which must be
established prior to a judicial conclusion that a child cannot or should not be placed with
the child's parent. In re Calvert Children, 5th Dist. Guernsey Nos. 05–CA–19, 05–CA–
20, 2005–Ohio–5653, ¶ 41.
{¶34} We have recognized that even where a parent has participated in his or her
case plan and completed most or all of the plan requirements, a trial court may still
properly determine that such parent has not substantially remedied the problems leading
to agency involvement. See, e.g., In re Pendziwiatr/Hannah Children, Tuscarawas
App.No. 2007 AP 03 0025, 2007–Ohio–3802, ¶ 27.
Licking County, Case No. 18 CA 0024 10
{¶35} We note Civ.R. 53(D)(3)(b)(iv) and Juv.R. 40(D)(3)(b)(iv) both state 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 ***.” Furthermore, as we emphasized supra,
objections to a magistrate's decision must be specific. See North v. Murphy, 5th Dist.
Tuscarawas No. 2000AP050044, 2001 WL 246419. Nonetheless, we have also
recognized that an appellant's failure to specifically object to a magistrate's decision does
not bar appellate review of “plain error.” See, e.g., Tormaschy v. Weiss, 5th Dist.
Richland No. 00 CA 01, 2000 WL 968685. To constitute plain error in a civil case, the
error must be “obvious and prejudicial” and “if permitted, would have a material adverse
effect on the character and public confidence in judicial proceedings.” Friedland v. Djukic,
191 Ohio App. 3d 278, 2010–Ohio–5777, ¶ 37 (8th Dist.).
{¶36} As indicated previously, appellant’s objection challenged “best interests”
only. We will therefore herein proceed under a plain error standard of review as to the
R.C. 2151.414(B)(1) issue.
{¶37} In the case sub judice, the magistrate heard testimony from nine witnesses,
plus appellant and Stephanie D. We note LCJFS ongoing caseworker Kelsey
Weisenstein testified that she had been assigned in the spring of 2016, and that she was
working on the case on a team basis with social worker Dom Barlow. Tr. at 250.
Weisenstein recalled that the original agency concerns included substance abuse,
mental health issues, parenting problems, safe housing, stable employment, and
relationship issues between mother and father. Tr. at 215. She and Barlow described the
case plan facets as having the parents pursue drug/alcohol and mental health
Licking County, Case No. 18 CA 0024 11
assessments and counseling, complete a parenting class, maintain employment and
safe and stable housing, and address their relationship issues.
{¶38} Appellant first maintains that the trial court’s conclusion that she had made
“minimal, if any, progress” was an exaggerated finding that is not supported by the
record. She urges that she had been seeing a licensed counselor for her mental health
and/or substance abuse issues, and had been attending Narcotics Anonymous meetings
at the suggestion of her counselor. Appellant had also made initial contact with two
inpatient programs, Courage House and Shepherd Hill, as a means of addressing her
relapse issues. Appellant also points out she tried to schedule parenting classes, but she
maintains that LCJFS would only allow enrollment upon her demonstrating sobriety for
a ninety-day period; thus, she never attained admission to the program. Appellant also
challenges the court’s conclusions as to her lack of housing and employment during the
case.
{¶39} Appellant thus does not presently deny that despite her attempts at
successful treatment, she continued to have relapses and methamphetamine-positive
tests or self-reports throughout the agency’s involvement. Appellant also does not deny
that she missed approximately twenty mental health appointments, although she
attributes this to transportation problems or scheduling conflicts. Furthermore, while she
was not unemployed throughout the case plan – she worked with her husband doing
lawn care in the summer of 2017 and was working at a Duke and Duchess convenience
store at the time of the final hearing, for example – the record at least indicates a lack of
stability in that realm. Also, while appellant was able to maintain housing for herself and
her husband, the court appeared concerned by the lack of adequate housing for the
Licking County, Case No. 18 CA 0024 12
potential return of the children; in any case, by the time of the final hearing, appellant
was reporting being in fear of her husband, who by then was living separate and apart
in Zanesville, Ohio, and she had become homeless because her mother would not
tolerate her meth use.
{¶40} Plain error analysis is limited and is to be applied with the utmost caution.
State v. Tart, 8th Dist. Cuyahoga No. 76223, 2000 WL 739518. Under our present limited
analysis of the question of the R.C. 2151.414(B)(1) requirements, brought about by the
lack of sufficiently detailed objections as per the Juvenile Rules, we are not persuaded
upon review that the trial court committed plain error by applying R.C. 2151.414(E)(1)
and (E)(16) and implicitly determining that K.D. and L.D., despite appellant's partial
compliance with the case plan, could not be placed with appellant or Jamie D. within a
reasonable time or should not be placed with appellant or Jamie D. See R.C.
2151.414(B)(1)(a).
R.C. 2151.414(D)(1) Best Interest Consideration
{¶41} Finally, in determining the best interest of a child for purposes of permanent
custody disposition, the trial court is required to consider the factors contained in R.C.
2151.414(D)(1) and “all relevant factors.” The specified factors are as follows:
(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 guardian ad litem, with due regard for the maturity of the
child;
Licking County, Case No. 18 CA 0024 13
(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 twelve or more months of a
consecutive twenty-two-month period, or the child has been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state;
(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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶42} In the case sub judice, LCJFS does not dispute that the parents were
generally consistent in their biweekly supervised visitations at the agency. Appellee’s
Brief at 24. See R.C. 2151.414(D)(1)(a). The magistrate’s decision nonetheless
concluded, without detailed reference to appellant, that Jamie D. was often late, or would
leave the visit early. Decision at 4. According to Weisenstein, the aforementioned agency
ongoing caseworker, Jamie D. was also telling the children not to “behave for [their]
caregivers.” Tr. at 257. Appellant’s present focus seems to be on the fact that visitation
was never increased outside of a biweekly supervised setting, although there was
testimony that the agency pursued a policy in this case that any increases in visitation
Licking County, Case No. 18 CA 0024 14
and/or modifications to the restrictiveness of the visitation setting were to be contingent
upon the overall progress on case plan services. Furthermore, in regard to the issue of
the children’s relationship with their caregivers, Weisenstein testified that she had
observed K.D. and L.D. in the current foster home every month and that they were doing
very well in that placement. Tr. at 277.
{¶43} In regard to the wishes of the children (R.C. 2151.414(D)(2)(a)), the
evidence tended to be oriented toward K.D., as she is the older of the two. The guardian
ad litem reported that K.D. had expressed a desire to stay with the foster parents
“forever.” In addition, evidence was presented from K.D.'s current and former therapists,
who both testified that K.D. would display aggressive behaviors following parent visits.
Lauren Gackstetter, LPC, K.D’s current counselor, additionally noted that on more than
one occasion, K.D. reported that she did not want to go back with her parents and that
she wanted to stay with her foster parents. Tr. at 318.
{¶44} In this instance, for purposes of R.C. 2151.414(D)(1)(c), K.D. and L.D. had
been in agency custody and foster care placement for nineteen months at the time of the
October 2017 permanent custody hearing, although this was shy of the “12 of 22” rule of
R.C. 2151.414(B)(1)(d), based on the February 2017 filing date of the permanent
custody motion. See Assignment of Error II, supra. Even so, we find the time frame factor
proper for consideration of the best interests of the children at issue. Caseworker
Weisenstein testified that K.D. and L.D. were placed in a therapeutic foster home and
had been in that placement for six months at the time of the final hearing. Tr. at 276.
Weisenstein testified that the previous foster placement was changed after K.D. became
aggressive with another child in that home. Id.
Licking County, Case No. 18 CA 0024 15
{¶45} The situation of the parents had presented new hurdles late in the timeframe
before the permanent custody hearings. R.C. 2151.414(D)(1)(d). As of October 2017,
the parents had become separated, and appellant had relapsed and become homeless
after being asked to leave the residence of her own mother. LCJFS also called a Licking
County Sheriff’s Deputy, who testified appellant reported in October 2017 that she had
received a threatening phone call from a man she had recently slept with and bought
drugs from. Tr. at 340. In addition, it appears undisputed that no viable relative
placements or legal custody options were available.
{¶46} It is well-established that “[t]he discretion which the juvenile court enjoys in
determining whether an order of permanent custody is in the best interest of a child
should be accorded the utmost respect, given the nature of the proceeding and the
impact the court's determination will have on the lives of the parties concerned.” In re
Mauzy Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, quoting In re
Awkal (1994), 95 Ohio App. 3d 309, 316, 642 N.E.2d 424. In the case sub judice, upon
review of the record and the findings and conclusions therein, we conclude the trial
court's judgment granting permanent custody of K.D. to the agency was made in the
consideration of the child's best interest and did not constitute an error or an abuse of
discretion under the circumstances presented.
{¶47} Appellant's Fourth Assignment of Error is overruled.
III.
{¶48} In her Third Assignment of Error, appellant argues that the trial court erred
in applying R.C. 2151.414(B)(1)(d) to this case.
Licking County, Case No. 18 CA 0024 16
{¶49} R.C. 2151.414(B)(1)(d) provides as a basis for advancing a permanent
custody case is that “[t]he 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 ***.” This provision is sometimes termed the
“twelve of twenty-two” rule. See, e.g., In re J.I., 12th Dist. Preble No. CA2005–05–008,
2005–Ohio–4920, ¶ 8.
{¶50} R.C. 2151.414(B)(1) additionally mandates: “For the purposes of division
(B)(1) of this section, a child shall be considered to have entered the temporary custody
of an agency on the earlier of the date the child is adjudicated pursuant to section
2151.28 of the Revised Code or the date that is sixty days after the removal of the child
from home.”
{¶51} Appellant herein is technically correct that twelve months had not elapsed
at the time of the permanent custody motion’s filing for purposes of invoking the “12 of
22” rule in the case sub judice. See In re C.W., 104 Ohio St. 3d 163, 167, 2004-Ohio-
6411, 818 N.E.2d 1176. However, it is well-established that an appellant, in order to
secure reversal of a judgment, must show that a recited error was prejudicial to her. See
Tate v. Tate, 5th Dist. Richland No. 02-CA-86, 2004-Ohio-22, ¶ 15, citing Ames v. All
American Truck & Trailer Service (Feb. 8, 1991), Lucas App. No. L-89-295, quoting
Smith v. Flesher (1967), 12 Ohio St. 2d 107, 110, 233 N.E.2d 137. We have recognized
that R.C. 2151.414(B)(1)(a) and (B)(1)(d) are independently sufficient to use as a basis
to grant an agency's motion for permanent custody. See Matter of P.K., 5th Dist. Stark
No. 2017 CA 00196, 2018-Ohio-400, ¶ 16, citing In re M.R., 3d Dist. Defiance No. 4–12–
18, 2013–Ohio–1302, ¶ 80.
Licking County, Case No. 18 CA 0024 17
{¶52} In the instant case, as indicated previously, the trial court additionally
implicitly relied upon R.C. 2151.414(B)(1)(a), and correspondingly, R.C. 2151.414(E)(1)
and (E)(16), in reaching its decision. We therefore find no showing of prejudicial error
under these circumstances.
{¶53} Appellant's Third Assignment of Error is overruled.
V.
{¶54} In her Fifth Assignment of Error, appellant argues the trial court erred when
it refused to grant her request for an extension of temporary custody. We disagree.
{¶55} A request by a parent for an extension of temporary custody in the situation
sub judice is, in practical effect, a request to postpone or continue the pending permanent
custody proceeding. We have frequently recognized that the grant or denial of a
continuance rests in the trial court's sound discretion. See, e.g., Matter of R.M., Jr., 5th
Dist. Muskingum No. CT2017-0057, 2018-Ohio-395, ¶ 22, citing State v. Unger, 67 Ohio
St.2d 65, 423 N.E.2d 1078 (1981), syllabus.
{¶56} The Ohio Supreme Court has recognized that R.C. 2151.415(D) permits an
agency to seek two extensions of a temporary custody order, up to six months each. In
re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840, 873 N.E.2d 886. However, no more than
two extensions of a temporary custody order may be given. Id., citing R.C. 2151.415(D).
The Court further explained: “Prior to the end of the second extension of the temporary
custody order, the agency must file a motion with the court requesting the court to make
a dispositional order. * * *” See, also, In re Murray, 52 Ohio St. 3d 155, 556 N.E.2d 1169
(1990).
Licking County, Case No. 18 CA 0024 18
{¶57} Upon review, and based on our earlier analysis, we find no demonstration
that the court acted in an unreasonable, unconscionable, or arbitrary manner in denying
appellant’s motion to extend temporary custody.
{¶58} Appellant's Fifth Assignment of Error is overruled.
VI.
{¶59} In her Sixth Assignment of Error, appellant argues that she was denied
effective assistance of counsel in the permanent custody proceeding. We disagree.
{¶60} We have recognized “ineffective assistance” claims in permanent custody
appeals. See, e.g., In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003–Ohio–
4576. Where the proceeding contemplates the loss of parents' “essential” and “basic”
civil rights to raise their children, “* * * the test for ineffective assistance of counsel used
in criminal cases is equally applicable to actions seeking to force the permanent,
involuntary termination of parental custody.” In re Wingo, 143 Ohio App. 3d 652, 666, 758
N.E.2d 780 (4th Dist.2001), quoting In re Heston, 129 Ohio App. 3d 825, 827, 719 N.E.2d
93 (1st Dist.1998). Our standard of review for an ineffective assistance claim is thus set
forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In re Fell, 5th Dist. Guernsey No. 05 CA 8, 2005–Ohio–5790, ¶ 11.
{¶61} The standard of review for ineffective assistance claims under Strickland,
supra, is also the standard in Ohio pursuant to State v. Bradley (1989), 42 Ohio St. 3d
136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim
for ineffective assistance of counsel. First, we must determine whether counsel's
assistance was ineffective; i.e., whether counsel's performance fell below an objective
standard of reasonable representation and was violative of any of his or her essential
Licking County, Case No. 18 CA 0024 19
duties to the client. If we find ineffective assistance of counsel, we must then determine
whether or not the defense was actually prejudiced by counsel's ineffectiveness such
that the reliability of the outcome of the trial is suspect. This requires a showing that there
is a reasonable probability that but for counsel's unprofessional error, the outcome of the
trial would have been different. Id. However, “[t]here are countless ways to provide
effective assistance in any given case.” Strickland, 466 U.S. at 689. Trial counsel is
entitled to a strong presumption that all decisions fall within the wide range of reasonable
professional assistance. State v. Sallie (1998), 81 Ohio St. 3d 673, 675, 693 N.E.2d 267.
{¶62} But even if an appellant initially shows that counsel was ineffective, he or
she must then satisfy the second prong of the Strickland test. In other words, it is well-
established that a reviewing court “need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” State v. Bradley at 143, quoting Strickland at 697.
{¶63} Accordingly, we will herein direct our attention to the second prong of the
Strickland test. See In re Huffman, 5th Dist. Stark No. 2005–CA–00107, 2005–Ohio–
4725, ¶ 22.
{¶64} Appellant first urges that her trial counsel was ineffective for not providing
more specific initial objections on February 8, 2017. See Assignment of Error I, supra. In
our redress of the present appeal to this point, we have analyzed on a plain error basis
appellant’s general contentions as to the grant of permanent custody in light of R.C.
2151.414(B)(1), and we have fully analyzed the issue of best interests under
2151.414(D)(1). Having had the opportunity to consider the record on appeal for those
purposes, we are unable to conclude that the trial judge’s rulings on the Juv.R. 40
Licking County, Case No. 18 CA 0024 20
objections would have gone the other way but for the nature of appellant’s trial counsel’s
objection format.
{¶65} Appellant secondly faults her trial counsel for failing to (1) call the guardian
ad litem as a witness, (2) question K.D.’s adult sister about appellant’s parenting and the
dynamics of the family, (3) object to alleged hearsay by Ms. Weisenstein, (4) adequately
question several of the agency’s witnesses and Jamie D., and (5) admit exhibits to
corroborate appellant’s testimony. We have emphasized, in the criminal law context, that
complaints of uncalled witnesses are not favored, because the presentation of
testimonial evidence is a matter of trial strategy and because allegations of what a
witness would have testified are largely speculative. State v. Schuttinger, 5th Dist.
Licking No. 13 CA 83, 2014-Ohio-3455, ¶ 57, quoting State v. Phillips, 5th Dist. Stark
No. 2010CA00338, 2011–Ohio–6569, ¶ 26, quoting Buckelew v. United States (5th
Cir.1978), 575 F.2d 515, 521. This caveat is equally applicable in the context of
challenges to a trial attorney’s representation in permanent custody matters.
Furthermore, an attorney may have to strategically curtail or avoid cross-examination
because it may re-emphasize damaging testimony. See State v. Nelson-Vaughn, 5th
Dist. Stark No. 2015 CA 00124, 2016-Ohio-1426, ¶ 71. Upon review, we find no
demonstration of prejudice regarding appellant’s trial counsel on the issues of presenting
evidence and cross-examination.
Licking County, Case No. 18 CA 0024 21
{¶66} Appellant's Sixth Assignment of Error is therefore overruled.
{¶67} For the reasons stated in the foregoing, the decision of the Court of
Common Pleas, Juvenile Division, Licking County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Baldwin, J., concur.
JWW/d 0807