In re C.B. ( 2014 )

[Cite as In re C.B., 2014-Ohio-4618.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: C.B. C.A. No. 14CA010588
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. 12 JC 27118
DECISION AND JOURNAL ENTRY
Dated: October 20, 2014
HENSAL, Presiding Judge.
{¶1} Appellant, Michelle B. (“Mother”), appeals from a judgment of the Lorain County
Court of Common Pleas, Juvenile Division, that terminated her parental rights to her youngest
child and placed the child in the permanent custody of Lorain County Children Services
(“LCCS”). This Court affirms.
I.
{¶2} Mother is the natural mother of four minor children. Although all four children
were parties to the proceedings in the trial court, only her youngest child, C.B., is at issue in this
appeal. LCCS has a long history of involvement with Mother’s three older children, dating back
to 2002. That history included at least one prior case and removal of those children from the
home. The concerns of LCCS have always focused on violence and neglect in the home as well
as ongoing drug abuse by Mother.
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{¶3} C.B. was born May 19, 2010, and tested positive for tetrahydrocannabinol, the
chemical responsible for marijuana’s psychological effects. Shortly afterward, LCCS again
became involved with the family on a voluntary basis. After approximately one year, LCCS
filed this involuntary case, alleging that C.B. was a dependent child.
{¶4} C.B. was adjudicated a dependent child and placed in the temporary custody of
LCCS. The primary case plan goal for Mother was to obtain a drug and alcohol assessment,
follow any treatment recommendations, and submit to random drug screens. During the next
year, however, Mother failed to complete a drug and alcohol assessment, obtain drug treatment,
or submit to drug screening. She also failed to visit C.B. on a consistent basis or to obtain stable
income or housing.
{¶5} LCCS eventually moved for permanent custody of C.B. Following a hearing on
the motion, the trial court found that C.B. had been in the temporary custody of LCCS for at least
12 of the prior 22 months and that permanent custody was in her best interest. Therefore, it
terminated parental rights and placed C.B. in the permanent custody of LCCS. Mother appeals
and raises four assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
THE AGENCY BECAUSE PERSONAL JURISDICTION OVER MOTHER
WAS NEVER OBTAINED.
{¶6} Mother’s first assignment of error is that she was not properly served with the
permanent custody motion, nor was she given proper notice of the hearing. This Court has held
that “a defect in the service of a permanent custody motion typically constitutes reversible error
because it had due process implications on the parent because the parent received untimely,
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insufficient, or no notice of the hearing.” In re D.T., 9th Dist. Summit No. 26344, 2012-Ohio-
3552, ¶ 16. Consequently, although Mother purports to challenge the personal jurisdiction of the
trial court, her supporting legal argument is based on due process principles.
{¶7} Mother recognizes that, although due process requires that the government
“attempt to provide actual notice” to parents if it seeks to terminate their parental rights, due
process does not require the trial court to ensure that each parent has received actual notice.
(Emphasis in original.) In re Thompkins, 115 Ohio St. 3d 409, 2007-Ohio-5238, ¶ 14. Under the
“unique circumstances of this case,” however, Mother argues the trial court was required to
provide her with actual notice of the permanent custody hearing and motion.
{¶8} Mother has failed to persuade this Court that her due process rights were violated.
Her argument is based on a mistaken understanding of the facts of this case. Despite Mother’s
assertion that she received only constructive notice, the record reveals that she received actual
notice of the permanent custody motion and hearing through counsel and the guardian ad litem.
“Actual notice” is notice “given directly to, or received personally by, a party.” Swader v.
Paramount Property Mgt., 12th Dist. Butler No. CA2011-05-084, 2012-Ohio-1477, ¶ 24,
quoting Black’s Law Dictionary 1090 (8th Ed.2004).
{¶9} The record in this case reflects that Mother received actual notice of the
permanent custody motion and hearing because her counsel communicated that information
directly to her. Mother does not dispute that her trial counsel accepted service of the permanent
custody motion and notice of the hearing on her behalf. See In re D.G., 9th Dist. Summit No.
26213, 2012-Ohio-1818, ¶ 11. She did not appear at the permanent custody hearing but her trial
counsel did. Counsel stated on the record that Mother knew about the motion and that the
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hearing had been scheduled for that date because he had discussed the matter with her. The
guardian ad litem also recalled talking to Mother about the motion and upcoming hearing.
{¶10} Mother does not claim that she did not receive notice of the motion or hearing,
nor does she point to anything in the record to contradict counsel’s statements to the court that he
gave Mother actual notice of the motion and hearing. Instead, she argues that trial counsel’s
statement to the court was not sufficient to establish that she received service of the permanent
custody motion and notice of the hearing. Given that trial counsel had ethical obligations under
Rules 1.4(A)(3) and 3.3(A)(1) of the Rules of Professional Conduct to keep his client reasonably
informed about the status of the proceedings and to communicate truthfully with the trial court,
we will presume that he did, absent anything in the record to suggest otherwise.
{¶11} Consequently, Mother has failed to demonstrate a violation of her due process
right to notice of the permanent custody motion and hearing. Mother’s first assignment of error
is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN REFUSING TO GRANT A CONTINUANCE
OF THE PERMANENT CUSTODY TRIAL TO GIVE MOTHER A CHANCE
TO APPEAR.
{¶12} Mother’s second assignment of error is that the trial court erred in failing to
continue the permanent custody trial. Pursuant to Juvenile Rule 23, “[c]ontinuances shall be
granted only when imperative to secure fair treatment for the parties.” Local Rule 21(A)(1) of
the Court of Common Pleas of Lorain County, Juvenile Division, requires that “[r]equests for
continuance of any trial before the Judge shall be filed no later than thirty (30) days prior to
trial[,]” but “[t]his requirement may be waived by the Court for good cause shown.”
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{¶13} Mother’s counsel filed no written motion for a continuance prior to the permanent
custody hearing, nor did he offer any reason for failing to do so. Instead, trial counsel appeared
at the hearing and, after discovering that Mother was not present, voiced an objection to the trial
court proceeding with the hearing without Mother in attendance.
{¶14} The trial court’s decision not to continue the hearing was within its sound
discretion, requiring it to balance “any potential prejudice to a [party against] concerns such as a
court’s right to control its own docket and the public’s interest in the prompt and efficient
dispatch of justice.” State v. Unger, 67 Ohio St. 2d 65, 67 (1981). “There are no mechanical
tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances * * *, particularly in the reasons presented [when] the
request is denied.” State v. Green, 90 Ohio St. 3d 352, 368 (2000), quoting Ungar v. Sarafite,
376 U.S. 575, 589 (1964). The trial court should consider: “the length of delay requested, prior
continuances, inconvenience, the reasons for the delay, whether the defendant contributed to the
delay, and other relevant factors.” Id., quoting State v. Landrum, 53 Ohio St. 3d 107, 115 (1990).
{¶15} Mother’s counsel informed the court that, although he had spoken to Mother
approximately one month earlier, he had not been able to reach her at the same phone number
since that time. Mother had not contacted him or provided him with updated information about
how to reach her. Because counsel had no recent communication with Mother, he could not
explain the reason for her absence, nor could he inform the court when she would be available
for a hearing, if the court were to grant a continuance.
{¶16} Mother’s lack of involvement in trial court proceedings and agency reunification
efforts was an ongoing problem throughout this case. When the trial judge asked whether
Mother had a “history of not appearing at hearings,” her counsel admitted that “[u]nfortunately
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she does.” Journal entries in the record reflect that Mother had failed to appear at several prior
hearings and that she had not been working with LCCS to address the reunification requirements
of the case plan.
{¶17} Consequently, Mother has failed to demonstrate that the trial court abused its
discretion by failing to continue the permanent custody hearing. Her second assignment of error
is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT’S JUDGMENT MUST BE REVERSED BECAUSE
MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
{¶18} Mother’s third assignment of error is that she failed to receive effective assistance
of trial counsel. “The test for ineffective assistance of counsel used in criminal cases is equally
applicable to actions seeking to force the permanent termination of parental rights.” In re C.M.,
9th Dist. Summit Nos. 23606, 23608, & 23629, 2007–Ohio–3999, ¶ 27, citing In re Heston, 129
Ohio App. 3d 825, 827 (1st Dist.1998). This two-part test requires a demonstration that counsel’s
performance fell below an objective standard of reasonable representation and that the client has
suffered prejudice. State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus.
See also Strickland v. Washington, 466 U.S. 668, 687 (1984). Proof of both parts of the test is
necessary to establish the claim. Bradley, 42 Ohio St. 3d at 142. In applying the test, the
reviewing court should recognize that counsel is strongly presumed to have rendered adequate
assistance. Id.
{¶19} Mother argues that her trial counsel’s performance was deficient because he failed
to: (1) object to her lack of notice of the permanent custody motion and hearing date, (2) raise
objections to the hearsay evidence presented against her, or (3) present evidence on her behalf.
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As explained already, however, Mother received notice of the permanent custody motion and
hearing from her trial counsel, so counsel had no reason to assert that Mother lacked notice.
{¶20} Next, Mother argues that trial counsel failed to object to the admission of certain
hearsay statements, most of which pertained to pre-adjudication facts such as where Mother was
living and whether she was using drugs. C.B. had already been adjudicated a dependent child
based on those facts, however, and Mother had failed to object to any of the magistrate’s factual
findings in the adjudicatory or dispositional decisions. See Juv.R. 40(D)(3)(b)(iv). Because
these facts were already established in the record, Mother suffered no prejudice from the
admission of hearsay testimony about the same facts.
{¶21} Finally, Mother asserts that trial counsel was ineffective for failing to present
evidence in her defense. “[T]he reasonableness of trial counsel’s performance must be examined
in light of the limitations that [Mother’s] own behavior placed on counsel’s ability to represent
[her].” In re N.H., 9th Dist. Summit No. 24355, 2008-Ohio-6617, ¶ 28, citing Strickland at 691.
The record demonstrates that it was Mother who hampered her own defense by failing to
cooperate with her trial counsel by giving him updated contact information and/or
communicating with him prior to the hearing. Mother’s trial counsel explained to the court that,
because he had not had an opportunity to confer with Mother about her defense, it was difficult
for him to present any evidence against the agency’s motion. Trial counsel should not be faulted
for Mother’s failure to communicate with him to assist in her own defense. See id.; In re J.S.,
9th Dist. Lorain No. 10CA009908, 2011-Ohio-985, ¶ 18.
{¶22} Moreover, Mother does not point to any evidence or facts that would have
bolstered her defense against the permanent custody motion. As will be explained below, LCCS
had a strong case against Mother because she failed to work on the reunification goals of the case
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plan and did not even maintain consistent contact with C.B. during this case. Because Mother
has failed to demonstrate that trial counsel’s performance was deficient and/or that she suffered
prejudice as a result, her third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT’S JUDGMENT THAT PERMANENT CUSTODY WAS
IN C.B.’S BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶23} Mother’s final assignment of error is that the permanent custody decision was
against the manifest weight of the evidence. Revised Code Section 2151.414(B)(1) establishes a
two-part test for courts to apply when determining whether to grant a motion for permanent
custody to a public services agency. The statute requires the court to find, by clear and
convincing evidence, that: (1) one of the enumerated factors in Section 2151.414(B)(1)(a)-(e)
apply, and (2) permanent custody is in the best interest of the child. R.C. 2151.414(B)(1). Clear
and convincing evidence is that which is sufficient to produce in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established. Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus.
{¶24} The trial court found that the first prong of the permanent custody test had been
satisfied because C.B. had been in the temporary custody of LCCS for at least 12 of the prior 22
months. Mother does not dispute that finding but instead challenges the trial court’s finding that
permanent custody was in C.B.’s best interest.
{¶25} When determining whether a grant of permanent custody is in the child’s best
interest, the juvenile court must consider all the relevant factors, including those enumerated in
Revised Code Section 2151.414(D): the interaction and interrelationships of the child, the wishes
of the child, the custodial history of the child, and the child’s need for permanence in her life.
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See In re R.G., 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. “Although the
trial court is not precluded from considering other relevant factors, the statute explicitly requires
the court to consider all of the enumerated factors.” In re Smith, 9th Dist. Summit No. 20711,
2002 WL 5178, *3 (Jan. 2, 2002); see also In re Palladino, 11th Dist. Geauga No. 2002-G-2445,
2002-Ohio-5606, ¶ 24.
{¶26} Mother’s interaction with C.B. during this case was limited to sporadic,
supervised visitation. Although LCCS initially scheduled visits twice a week, the frequency of
the visits was reduced to once a week because Mother did not attend regularly. After visits were
cut back to once a week, Mother’s attendance rate did not improve, so LCCS began requiring her
to confirm that she would attend before C.B. was transported for each visit. During the first year
of the case, despite the efforts of LCCS to increase Mother’s level of participation, she attended
only 40 percent of the scheduled visits with C.B.
{¶27} After the first year, Mother’s visits with C.B. were suspended altogether because
she did not attend on a consistent basis and had failed to comply with the substance abuse
component of the case plan. Although Mother had some phone conversations with C.B. during
this period, she had no face-to-face interaction with C.B. for seven months prior to the permanent
custody hearing.
{¶28} Because C.B. was less than three years old at the time of the hearing, the guardian
ad litem spoke on her behalf. The guardian ad litem offered her opinion that permanent custody
was in C.B.’s best interest. Although she did not doubt that Mother loved C.B., the guardian was
concerned that Mother lacked the ability to meet the basic needs of C.B. because she had failed
to address the substance abuse component of the case plan.
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{¶29} For more than half of her young life, C.B. had lived outside Mother’s custody in
three different temporary placements and was in need of a stable placement. Neither parent was
prepared to provide her with a suitable home nor had LCCS been able to find any relatives who
were willing to do so. Consequently, the trial court reasonably concluded that C.B. was in need
of a legally secure permanent placement, which would only be achieved by placing her in the
permanent custody of LCCS. Because the evidence on each of the best interest factors weighed
in favor of permanent custody, Mother’s fourth assignment of error is overruled.
III.
{¶30} Mother’s assignments of error are overruled. The judgment of the Lorain 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 Lorain, 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.
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.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KATHLEEN AMERKHANIAN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and EMILY W. KIRSCH, Assistant Prosecuting
Attorney, for Appellee.