In re F.T. ( 2023 )

[Cite as In re F.T., 2023-Ohio-191.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF: :
:
F.T., : Case No. 22CA17
:
Adjudicated Dependent Child. :
:
: DECISION AND JUDGMENT
: ENTRY
:
:
APPEARANCES:
Brian A. Smith, Fairlawn, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Jennifer L. Ater,
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Smith, P.J.
(¶1} Appellant, W.L., appeals the trial court’s decision that granted
permanent custody of his one-year-old biological child, F.T., to South
Central Ohio Job and Family Services, Children’s Division (“the agency”).
Appellant raises five assignments of error and argues that (1) the trial court’s
judgment placing the child in the agency’s temporary custody is void
because the court did not obtain personal jurisdiction over him due to lack of
proper service, (2) the trial court’s judgment placing the child in the
Ross App. No. 22CA17 2
agency’s permanent custody is void because the court did not obtain
personal jurisdiction over him due to lack of proper service, (3) trial counsel
was ineffective for failing to object to the lack of proper service, (4) the trial
court’s decision is against the manifest weight of the evidence, and (5) the
agency failed to use reasonable efforts to attempt to place the child with
Appellant. For the reasons that follow, we do not find any merit to
Appellant’s assignments of error. Therefore, we overrule his assignments of
error and affirm the trial court’s judgment.
FACTS
{¶2} On March 19, 2021, the agency filed a complaint that alleged the
child is an abused child and that requested the court to place the child in its
temporary custody. The attached statement of facts (dated March 16, 2021)
alleged that in early January 2021, the agency received a report regarding the
child’s mother. The report indicated that the mother had presented to the
hospital to give birth to the child and was visibly under the influence. The
mother had informed medical personnel that she had used heroin two hours
before her arrival at the hospital. Her drug screen, however, returned
positive for cocaine and marijuana.
{¶3} The mother spoke with an agency caseworker and admitted that
she used drugs during her pregnancy. She stated that she might know the
Ross App. No. 22CA17 3
identity of the baby’s father, but she would not give the caseworker any
further information. Four days after the child’s birth, the caseworker learned
that the baby’s urine screen returned positive for cocaine.
{¶4} On January 12, 2021, while the baby was still in the hospital, the
caseworker heard that Appellant called the hospital and claimed to be the
baby’s father. The caseworker phoned Appellant on January 12 and 13, but
she did not reach him directly. Instead, she left Appellant a message to
contact her.
{¶5} Eight days after the child’s birth, the mother died in a car
accident. The agency subsequently requested ex parte temporary emergency
custody of the child, which the court granted.1
{¶6} On March 19, 2021, the agency asked the court to serve “the
unknown father” of the child by posting on the Ross County Ohio Juvenile
Court’s website and by ordinary mail. The attached affidavit of publication
by posting and mail stated that the agency had “made reasonable efforts to
determine the residence of the unknown father, including: telephone contact
with possible fathers & requests for DNA testing.”
1
We observe that the record transmitted on appeal does not contain any documents that predate the filing of the March 19, 2021
complaint. The agency states in its brief that it dismissed the original complaint and refiled the complaint on March 19, 2021. We
also note that Appellant has not disputed that the child has been in the agency’s temporary custody since shortly after her birth.
Ross App. No. 22CA17 4
{¶7} On March 31, 2021, the magistrate entered a decision indicating
that the case “came on for Arraignment on March 30, 2021.” The magistrate
found that “the unknown father has been served and failed to appear” and
continued the child in the agency’s temporary custody.
{¶8} On April 15, 2021, the court found that Appellant is the child’s
biological father. Shortly thereafter, the court added Appellant as a party to
the case and issued a summons to Appellant with an address in Londonderry,
Ohio. It was returned with a notation that Appellant no longer lived at that
address.
{¶9} On May 21, 2021, the agency filed a motion to serve Appellant
by posting and by ordinary mail. Additionally, another summons was sent
to Appellant at an address in Chillicothe. Appellant later entered an
appearance and requested the court to appoint counsel to represent him.
{¶10} On June 14, 2021, the court held a hearing. The father’s
counsel attended and indicated that Appellant was in a rehabilitation center.
She stated that Appellant agreed “to the stipulation, to the alleged drug use
during [the mother’s] pregnancy, and the child being born positive, that this
case needs to go forward.” At the conclusion of the hearing, the magistrate
stated that “the Court [found] the child to be an abused child.”
Ross App. No. 22CA17 5
{¶11} On June 21, 2021, the magistrate adjudicated the child a
dependent child.2 The magistrate found that the agency has used and
continues to use reasonable efforts to place the child with Appellant. On
that same date, the trial court adopted the magistrate’s decision.
{¶12} On June 25, 2021, the magistrate entered a dispositional order
that continued the child in the agency’s temporary custody. The magistrate
again determined that the agency used reasonable efforts to prevent the
child’s continued removal from the home and to make it possible for the
child to safely return home. On that same date, the trial court adopted the
magistrate’s decision.
{¶13} On February 28, 2022, the agency filed a motion that requested
permanent custody of the child. The agency alleged that the child has been
in its temporary custody since January 18, 2021, that the child cannot and
should not be placed with Appellant within a reasonable time, and that
placing the child in its permanent custody is in the child’s best interest. The
agency asked the court to serve Appellant by posting and by ordinary mail.
{¶14} On April 25, 2022, the court held a hearing to consider the
agency’s permanent custody motion. Prism Behavioral Health Care
2
We observe that the complaint alleged that the child is an abused child and that at the adjudicatory hearing, the magistrate found the
child to be an abused child. The journal entry, however, states that the court adjudicated the child a dependent child. The trial court
retains authority to enter a nunc pro tunc entry to ensure that the record reflects what the court actually decided. State ex rel. Fogle v.
Steiner, 74 Ohio St.3d 158, 163-164, 656 N.E.2d 1288 (1995) (“courts and administrative tribunals possess inherent authority to
correct errors in judgment entries so that the record speaks the truth”).
Ross App. No. 22CA17 6
counselor Scott Patrick testified that in June 2021, he started alcohol-and-
drug treatment services with Appellant. Patrick explained that Appellant’s
treatment goals included (1) abstaining from using mind-altering substances
and alcohol, (2) complying with any medical requirements and any
suggested treatment, (3) finding adequate housing and employment, (4)
staying in touch with the agency, and (5) continuing to work on the agency’s
case plan.
{¶15} Patrick stated that Appellant’s attendance “dropped off in
December of 2021,” and that he “didn’t see him that month or most of
January 2022.” Appellant re-engaged with Patrick on January 20, 2022, and
he remained compliant until “the last couple of weeks” before the permanent
custody hearing. Patrick reported that Appellant had three positive drug
screens between January 20, 2022, and the end of March 2022, and that
Appellant was discharged from the program on April 18, 2022, due to
noncompliance.
{¶16} The child’s foster father testified that the child has been in his
and his wife’s care since January 19, 2021. He stated that he and his wife
are bonded to the child and that they plan to adopt her if the possibility
arises.
Ross App. No. 22CA17 7
{¶17} Caseworker Crystal Puckett stated that the agency became
involved with the family upon learning that the child had tested positive for
drugs at birth. At the time, the baby’s father was not known. About one
week later, the child’s mother died in a car accident, and the agency obtained
temporary custody of the child.
{¶18} Puckett explained that once genetic testing confirmed
Appellant as the child’s biological father, the agency added him to the case
plan. The case plan required Appellant to complete parenting classes, obtain
alcohol-and-drug counseling, maintain stable housing, consistently
communicate with the agency, and consistently attend visits with the child.
Puckett stated that Appellant consistently visited the child, except for a
period of time between December 2021 and January 2022, and that
Appellant completed parenting classes. Puckett testified that Appellant has
not, however, complied with any of the remaining case plan requirements.
{¶19} Puckett reported that Appellant did not obtain stable housing.
She explained that during the pendency of the case, Appellant lived with his
sister, then his mother, and then moved back in with his sister. In December
2021, Puckett did not know where Appellant had been living. Puckett
indicated that she tried contacting Appellant in December 2021, but she was
unable to locate him until January 2022. She met Appellant on January 20,
Ross App. No. 22CA17 8
2022, and he refused to give her the location of his current residence. Thus,
she does not know where he presently lives. Puckett additionally explained
that she helped Appellant obtain a housing voucher that he received around
three weeks before the permanent custody hearing.
{¶20} Puckett further reported that Appellant has not maintained
regular contact with the agency. Puckett stated that she tried reaching him
via telephone, through his treatment provider, and by going to his last known
address (his sister’s house).
{¶21} Puckett indicated that she has concerns about placing the child
with Appellant. She explained that Appellant “gets very angry easily” and is
“very * * * volatile.” Puckett further stated that Appellant has a history of
domestic violence.
{¶22} Appellant testified that for the past week, he has been residing
at the same address. Before that, he was staying at a hotel. Appellant
explained that he still is waiting to find a place to rent, and he thinks that
with a little more time, he would be able to take custody of the child.
{¶23} On cross-examination, Appellant clarified that he currently is
living with a friend and the friend’s wife until Appellant finds a place of his
own. Appellant disputed the testimony that he was discharged from Prism
because he could not be reached, failed to attend sessions, and tested
Ross App. No. 22CA17 9
positive for drugs three times within a three-month period. Appellant further
stated that he has a job and that the agency knew that he had a job. He did
not, however, give the agency any proof of his employment.
{¶24} Counsel for the agency asked Appellant whether he had
informed Puckett that he had not been in contact with the agency from
December 2021 through January 2022, because he “needed to take a break
from the case.” Appellant responded that he did not tell Puckett that he
needed to take a break.
{¶25} The agency called Puckett as a rebuttal witness. She stated that
when Appellant reconnected with her in January 2022, Appellant informed
her that he had not been in touch with her because “he was taking a break.”
{¶26} After the hearing, the court granted the agency permanent
custody of the child. The court found that the child cannot be placed with
either parent “within a reasonable time and/or should not be placed with
them.” The court noted that the child’s mother is deceased and that
Appellant failed to complete “significant portions of the case plan.” The
court stated that “[o]ther than the Parenting Class requirement [Appellant]
has not completed any portion of the case plan.”
{¶27} The court found that Appellant failed to complete an alcohol-
and-drug treatment program and pointed out that he was discharged due to
Ross App. No. 22CA17 10
noncompliance shortly before the permanent custody hearing. Appellant
also continued to test positive for alcohol, fentanyl, and methamphetamines
between the end of January 2022, and March 31, 2022.
{¶28} The court further found that Appellant failed to maintain stable
housing. The court noted that over the past year, he lived with his sister, his
mother, with his sister again, “at some unnamed hotel,” and with a friend.
{¶29} The court also stated that Appellant did not maintain consistent
contact with the caseworker and that Appellant “has been angry/volatile with
his relationship with the caseworker.”
{¶30} The court additionally determined that placing the child in the
agency’s permanent custody is in the child’s best interest. The court
observed that Appellant did not consistently visit the child and stated that
due to Appellant’s inconsistent visits, “it’s very difficult to determine if
there is any father/daughter bond.” On the other hand, the court found that
the child “has a very strong bond with her foster parents” and that she “is
doing well in foster care.” The court also noted that the child’s guardian ad
litem recommended that the court place the child in the agency’s permanent
custody. The court further determined that the child cannot achieve
permanency without granting the agency permanent custody. The court
additionally found that the agency used reasonable efforts to place the child
Ross App. No. 22CA17 11
with Appellant “by attempting to provide case management services,
referrals to AOD providers, referrals for housing, and visitation.” The court
thus placed the child in the agency’s permanent custody. This appeal
followed.3
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT DECISION GRANTING
APPELLEE’S MOTION FOR TEMPORARY
CUSTODY WAS VOID, BECAUSE IT DENIED DUE
PROCESS TO APPELLANT DUE TO INSUFFICIENT
SERVICE, IN VIOLATION OF APPELLANT’S RIGHT
TO DUE PROCESS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT DECISION GRANTING
APPELLEE’S MOTION FOR PERMANENT
CUSTODY WAS VOID, BECAUSE IT DENIED DUE
PROCESS TO APPELLANT DUE TO INSUFFICIENT
SERVICE, IN VIOLATION OF APPELLANT’S RIGHT
TO DUE PROCESS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION
16 OF THE OHIO CONSTITUTION.
III. THE FAILURE OF APPELLANT’S TRIAL COUNSEL
TO OBJECT TO THE TRIAL COURT’S IMPROPER
SERVICE AND LACK OF JURISDICTION OVER
3
We point out that Appellant filed his notice of appeal more than 30 days after the trial court’s judgment granting the agency
permanent custody of the child. However, appellant filed a motion with the trial court that asked the court to grant him “leave to file a
notice of appeal out of time.” He asserted that the courthouse was closed due to construction on the thirtieth day, May, 2022. The
trial court granted Appellant’s motion.
Despite the procedural irregularity, we recognize Appellant’s appeal as timely given his assertion (and the trial court’s acceptance)
that the courthouse was closed on the thirtieth day and that he filed his notice of appeal on the next business day that the courthouse
was open, May 31, 2022. See R.C. 1.14 (“When a public office in which an act, required by law, is to be performed is closed to the
public for the entire day that constitutes the last day for doing the act or before its usual closing time on that day, the act may be
performed on the next succeeding day that is not a Sunday or a legal holiday as defined in this section.”); e.g., State v. Kaiser, 4th
Dist. Lawrence No. 10CA1, 2010-Ohio-4616, ¶ 12 (App.R. 14(B) states that courts may not enlarge the time for filing a notice of
appeal).
Ross App. No. 22CA17 12
APPELLANT CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL AND VIOLATED
APPELLANT’S RIGHTS TO COUNSEL AND DUE
PROCESS UNDER ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION AND THE FIFTH, SIXTH
AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
IV. THE TRIAL COURT’S RULING, GRANTING
APPELLEE’S MOTION FOR PERMANENT
CUSTODY, WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
V. THE TRIAL COURT’S RULING, GRANTING
APPELLEE’S MOTION FOR PERMANENT
CUSTODY WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, BECAUSE APPELLEE
DID NOT SHOW THAT IT HAD MADE
“REASONABLE EFFORTS” TO REUNITE THE
FAMILY PURSUANT TO R.C. 2151.419.
ANALYSIS
FIRST AND SECOND ASSIGNMENTS OF ERROR
{¶31} In his first and second assignments of error, Appellant argues
that the trial court’s dispositional order placing the child in the agency’s
temporary custody and its judgment granting the agency permanent custody
of the child violate his due process right to adequate notice of the
proceedings. Appellant essentially argues that the failure to notify him in
January 2021, or at least earlier than April 2021, that the child needed a
placement deprived him of the ability to demonstrate, at the earliest
opportunity, that the child could be placed with him. Appellant asserts that
Ross App. No. 22CA17 13
his earlier involvement in the case would have allowed him to make better
use of the resources available to him and would have given him adequate
time to comply with the case plan. He claims that the additional time would
have led the court to conclude that placing the child in his custody would be
in the child’s best interest.
{¶32} More particularly, Appellant alleges that “several critical
errors” occurred while attempting to serve him with notice of the initial
hearing and the permanent custody hearing. He first asserts that the trial
court erred by allowing the agency to serve the child’s “unknown father”
with notice of the initial complaint via publication. He contends that the
agency failed to establish that it exercised reasonable diligence to ascertain
Appellant’s address. Appellant further argues that the trial court’s notice
setting the initial hearing date stated that the hearing would be held on
March 29, 2021, but the court’s entry suggests that the hearing was held on
March 30, 2021. Appellant thus claims that the service also failed to notify
him of the accurate hearing date. He additionally alleges that the court did
not comply with Juv.R. 16 and Ross County Common Pleas Court, Juvenile
Division, Local Rule 5.02(B).
{¶33} Appellant also argues that the trial court erred by allowing the
agency to serve Appellant with notice of the permanent custody hearing via
Ross App. No. 22CA17 14
publication. He claims that the agency failed to demonstrate that it used
reasonable diligence to ascertain Appellant’s address.
{¶34} We first observe that Appellant has improperly combined the
arguments pertaining to his first and second assignments of error. While
appellate courts may combine assignments of error, the Appellate Rules
require an appellant’s brief to separately argue each assignment of error.
App.R. 16(A)(7) (stating that “[t]he appellant shall include in its brief * * *
[a]n argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies”); State v. Rife, 4th Dist. Ross No.
11CA3276, 2012-Ohio-3264, ¶ 15. We thus would be within our discretion
to disregard Appellant’s first and second assignments of error. See App.R.
12(A)(2) (stating that court may disregard an assignment of error if appellant
fails to separately argue it). We prefer, however, to decide cases on their
merits rather than procedural technicalities. Barksdale v. Van’s Auto Sales,
Inc., 38 Ohio St.3d 127, 128, 527 N.E.2d 284, 285 (1988) (noting that a
“basic tenet of Ohio jurisprudence [is] that cases should be determined on
their merits and not on mere procedural technicalities”). We therefore will
Ross App. No. 22CA17 15
review Appellant’s first and second assignments of error to the extent
described below.
{¶35} The Due Process Clause of the Fifth Amendment to the United
States Constitution, as applicable to the states through the Fourteenth
Amendment, provides: “No person shall * * * be deprived of life, liberty, or
property, without due process of law.” “[P]arents’ interest in the care,
custody, and control of their children ‘is perhaps the oldest of the
fundamental liberty interests recognized by this Court.’ ” In re B.C., 141
Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed,
the right to raise one’s “child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see Santosky v.
Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (stating
that “natural parents have a fundamental right to the care and custody of
their children”). Thus, “parents who are ‘suitable’ have a ‘paramount’ right
to the custody of their children.” B.C. at ¶ 19, quoting In re Perales, 52
Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32 Ohio
St. 299, 310 (1877); Murray, 52 Ohio St.3d at 157.
Ross App. No. 22CA17 16
{¶36} The Ohio Supreme Court has described the permanent
termination of parental rights as “ ‘the family law equivalent of the death
penalty in a criminal case.’ ” Hayes, 79 Ohio St.3d at 48, quoting In re
Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Consequently,
courts must afford parents facing the permanent termination of their parental
rights “ ‘every procedural and substantive protection the law allows.’ ” Id.,quoting Smith at 16, 601 N.E.2d 45; accord B.C. at ¶ 19. Thus, because
parents possess a fundamental liberty interest in the care and custody of their
children, the state may not deprive parents of their parental rights without
due process of law. In re James, 113 Ohio St.3d 420, 2007-Ohio-2335, 866
N.E.2d 467, ¶ 16; e.g., In re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-
5014, ¶ 12; In re M.H., 4th Dist. Vinton No. 11CA683, 2011-Ohio-5140, ¶¶
49-50. Moreover, a parent’s right to due process “does not evaporate simply
because” that parent has “not been [a] model parent[ ] or [has] lost
temporary custody of their child to the State.” Santosky, 455 U.S. at 753.
{¶37} Although “due process” lacks precise definition, courts have
long held that due process requires both notice and an opportunity to be
heard. In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d
582, ¶ 12, citing Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4
S.Ct. 663, 28 L.Ed. 569 (1884); Caldwell v. Carthage, 49 Ohio St. 334, 348,
Ross App. No. 22CA17 17
31 N.E. 602 (1892). “An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); accord In re Thompkins at
¶ 13.
{¶38} Moreover, given the importance of the parent-child bond, “a
Juvenile Court cannot make a valid order changing temporary commitment
of a dependent child to a permanent one without a service of notice upon the
parent of the child, strictly in accordance with the law.” In re Frinzl, 152
Ohio St. 164, 173, 87 N.E.2d 583 (1949); accord In re S.S., 9th Dist. Wayne
No. 10CA0010, 2010-Ohio-6374, ¶ 43, quoting In re Cowling, 72 Ohio
App.3d 499, 500-501, 595 N.E.2d 470 (9th Dist.1991). “ ‘[A] judgment
rendered without proper service or entry of appearance is a nullity and
void.’ ” State ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 183-184,
553 N.E.2d 650 (1990), quoting Lincoln Tavern, Inc. v. Snader, 165 Ohio St.
61, 64, 133 N.E.2d 606 (1956). Thus, “a valid court judgment requires both
proper service under the applicable Ohio rules and adequate notice under the
Due Process Clause.” In re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-
Ross App. No. 22CA17 18
5014, 2014 WL 5812193, ¶ 14, citing Samson Sales, Inc. v. Honeywell, Inc.,
66 Ohio St.2d 290, 293, 421 N.E.2d 522 (1981).
{¶39} When, however, “parents of minor children have the notice and
opportunity to assert their rights in a permanent custody proceeding,” no due
process violation occurs. Ross v. Saros, 99 Ohio St.3d 412, 2003-Ohio-
4128, 792 N.E.2d 1126, ¶ 17. Accordingly, “a notice issue may be waived
on appeal when a parent’s attorney is present for various permanent custody
hearings and does not raise the improper notice issue.” In re C.B., 2020-
Ohio-5151, 161 N.E.3d 770, ¶ 19 (4th Dist.).
{¶40} In the case sub judice, at no point during the trial court
proceedings did Appellant assert that he had not been adequately notified of
any of the proceedings. Instead, he entered an appearance, requested court-
appointed counsel, did not object to any deficiency in service, stipulated to
the dependency adjudication, and attended the permanent custody hearing.
Not once did Appellant or his counsel assert that he had not received
adequate service of the agency’s initial complaint or its permanent custody
motion. Under these circumstances, we believe that Appellant waived the
argument that he did not receive adequate service of process. Ross at ¶ 17;
C.B. at ¶ 19; accord In re A.C., 9th Dist. Summit No. 30086, 2022-Ohio-
1081, ¶¶ 8-9 (rejecting parent’s assertion that permanent custody decision
Ross App. No. 22CA17 19
void for lack of personal jurisdiction due to alleged improper service of
complaint and permanent custody motion when parent appeared at hearings
and failed to object to alleged lack of proper service); In re I.G., 3rd Dist.
Marion No. 9-13-43, 2014-Ohio-1136, ¶ 18, quoting In re Keith Lee P., 6th
Dist. Lucas No. L-03-1266, 2004-Ohio-1976, ¶ 9 (stating that “’[t]he issue
of notice is waived on appeal when the parent’s attorney is present for
various permanent custody hearings and never argues improper notice’”); In
re D.H., 177 Ohio App.3d 246, 2008-Ohio-3686, 894 N.E.2d 364, ¶ 38 (8th
Dist.) (“the issue of notice is waived on appeal when the parent’s attorney is
present for various permanent-custody hearings and never argues improper
notice”); see Lundeen v. Turner, 164 Ohio St.3d 159, 2021-Ohio-1533, 172
N.E.3d 150, ¶ 22, fn. 2 (in a civil proceeding, a trial court’s judgment is not
void due to allegedly improper service when party submits to court’s
jurisdiction); State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162
N.E.3d 776, ¶ 36 (stating that a person “submits to the court’s jurisdiction if
he does not object to the court’s exercise of jurisdiction over him”); Gliozzo
v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762,
870 N.E.2d 714, ¶ 13 (stating that a party voluntarily submits to a court’s
jurisdiction “by failing to raise the defense of insufficiency of service of
process in a responsive pleading or by filing certain motions before any
Ross App. No. 22CA17 20
pleading”); In re Hunt, 46 Ohio St.2d 378, 381, 348 N.E.2d 727 (1976)
(noting that under Juv.R. 22, parent has “the opportunity to file an answer, to
file motions to dismiss based upon the insufficiency of the complaint and the
failure to show jurisdiction”); Juv.R. 22(D)(1) (stating that “[d]efenses or
objections based on defects in the institution of the proceeding” “must be
heard before the adjudicatory hearing”). But see In re R.P., 9th Dist.
Summit No. 26271, 2012-Ohio-4799 (determining that trial court never
obtained personal jurisdiction over unknown father and voiding legal
custody award when evidence showed that children services agency was not
truthful when attesting that father unknown and that no one had contacted
the agency claiming to be the child’s father; instead, putative father had
called the agency and left his phone number and agency did not follow up
with putative father).
{¶41} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s first and second assignments of error.
THIRD ASSIGNMENT OF ERROR
{¶42} In his third assignment of error, Appellant argues that trial
counsel failed to provide effective assistance of counsel by failing to object
to the lack of improper service and lack of personal jurisdiction. He
contends that had trial counsel properly objected, then “the trial court would
Ross App. No. 22CA17 21
not have granted either temporary or permanent custody to the agency, and
[Appellant]’s parental rights would not have been terminated.”
{¶43} The right to counsel, guaranteed in permanent custody
proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right to the
effective assistance of counsel. In re Wingo, 143 Ohio App.3d 652, 666,
758 N.E.2d 780 (4th Dist.2001), citing In re Heston, 129 Ohio App.3d 825,
827, 719 N.E.2d 93 (1st Dist.1998); e.g., In re J.P.B., 4th Dist. Washington
No. 12CA34, 2013-Ohio-787, ¶ 23; In re K.M.D., 4th Dist. Ross No.
11CA3289, 2012-Ohio-755, ¶ 60; In re A.C.H., 4th Dist. Gallia No. 11CA2,
2011-Ohio-5595, ¶ 50. “ ‘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.’ ” Wingo, 143 Ohio App.3d at 666, quoting Heston.
{¶44} To establish constitutionally ineffective assistance of counsel, a
defendant must show (1) that his counsel’s performance was deficient and
(2) that the deficient performance prejudiced the defense and deprived the
defendant of a fair trial. E.g., Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Obermiller, 147 Ohio St.3d
175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 83; State v. Powell, 132 Ohio St.3d
Ross App. No. 22CA17 22
233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either
element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
06CA3116, 2008-Ohio-968, ¶ 14. Therefore, if one element is dispositive, a
court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721
N.E.2d 52 (2000) (stating that a defendant’s failure to satisfy one of the
elements “negates a court’s need to consider the other”).
{¶45} “In order to show deficient performance, the defendant must
prove that counsel’s performance fell below an objective level of reasonable
representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 95 (citations omitted); accord Hinton v. Alabama, 571 U.S.
263, 134 S.Ct. 1081, 1088, 188 L.Ed.2d 1 (2014), citing Padilla v. Kentucky,
559 U.S. 356, 366, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); State v.
Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81.
Furthermore, “ ‘[i]n any case presenting an ineffectiveness claim, the
performance inquiry must be whether counsel’s assistance was reasonable
considering all the circumstances.’ ” Hinton, 134 S.Ct. at 1088, quoting
Strickland, 466 U.S. at 688. Additionally, “[a] properly licensed attorney is
presumed to execute his duties in an ethical and competent manner.” State
v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing
State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a
Ross App. No. 22CA17 23
defendant bears the burden to show ineffectiveness by demonstrating that
counsel’s errors were “so serious” that counsel failed to function “as the
‘counsel’ guaranteed * * * by the Sixth Amendment.” Strickland, 466 U.S.
at 687; e.g., Obermiller at ¶ 84; State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Hamblin, 37 Ohio St.3d 153, 156,
524 N.E.2d 476 (1988).
{¶46} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that “ ‘but for counsel’s errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine the outcome.’ ” Hinton, 134 S.Ct. at
1089, quoting Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio
St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
Furthermore, courts ordinarily may not simply presume the existence of
prejudice but must require the defendant to affirmatively establish prejudice.
State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v.
Tucker, 4th Dist. Ross No. 01CA2592, 2002 WL 507529 (Apr. 2, 2002). As
we have repeatedly recognized, speculation is insufficient to demonstrate the
prejudice component of an ineffective assistance of counsel claim. E.g.,
State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State
Ross App. No. 22CA17 24
v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v.
Halley, 4th Dist. Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v.
Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State
v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (an
argument that is purely speculative cannot serve as the basis for an
ineffectiveness claim).
{¶47} In the case at bar, even presuming that Appellant established
that trial counsel performed deficiently by failing to object to the alleged
lack of proper service, we do not believe that Appellant has demonstrated
that any supposed deficiency caused him prejudice. Appellant speculates
that if trial counsel had properly objected, then the trial court would not have
granted the agency temporary custody of the child at the outset of the case.
However, had trial counsel objected to the alleged deficiency of service at
the first opportunity, the trial court could have continued the child in the
agency’s temporary custody until proper service could be made upon
Appellant. Moreover, when the agency first obtained custody of the child,
Appellant had not been confirmed to be the child’s father. Thus, Appellant’s
assertion that the trial court would have placed the child in his custody,
when he had yet to be confirmed to be the child’s father, also is purely
speculative.
Ross App. No. 22CA17 25
{¶48} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s third assignment of error.
FOURTH ASSIGNMENT OF ERROR
{¶49} In his fourth assignment of error, Appellant contends that the
trial court’s decision to grant the agency permanent custody of the child is
against the manifest weight of the evidence. He asserts that he “substantially
complied with several conditions of the case plan.” Appellant states that he
completed parenting classes, obtained stable housing, is gainfully employed,
and displayed a commitment to the child by visiting with her. He further
points out that even though he recently had been terminated from his alcohol
and drug treatment counseling, he had been engaged in counseling for nearly
one year before his termination.
STANDARD OF REVIEW
{¶50} A reviewing court generally will not disturb a trial court’s
permanent custody decision unless the decision is against the manifest
weight of the evidence. See In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶
53 (4th Dist.). When an appellate court reviews whether a trial court’s
permanent custody decision is against the manifest weight of the evidence,
the court “ ‘ “ ‘weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in
Ross App. No. 22CA17 26
the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.’ ” ’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio
App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶51} In a permanent custody case, the ultimate question for a
reviewing court is “whether the juvenile court’s findings * * * were
supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. In determining whether a trial
court based its decision upon clear and convincing evidence, “a reviewing
court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” State v.
Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). “Thus, if the children
services agency presented competent and credible evidence upon which the
trier of fact reasonably could have formed a firm belief that permanent
custody is warranted, then the court’s decision is not against the manifest
weight of the evidence.” R.M. at ¶ 55.
Ross App. No. 22CA17 27
{¶52} Once the reviewing court finishes its examination, the court
may reverse the judgment only if it appears that the factfinder, when
resolving the conflicts in evidence, “ ‘clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.’ ” Thompkins at 387, 678 N.E.2d 541, quoting Martin at
175, 485 N.E.2d 717. A reviewing court should find a trial court’s
permanent custody decision against the manifest weight of the evidence only
in the “ ‘exceptional case in which the evidence weighs heavily against the
[decision].’ ” Id., quoting Martin at 175, 485 N.E.2d 717.
PERMANENT CUSTODY FRAMEWORK
{¶53} R.C. 2151.414(B)(1) specifies that a trial court may grant a
children services agency permanent custody of a child if the court finds, by
clear and convincing evidence, that (1) the child’s best interest would be
served by the award of permanent custody, and (2) any of the following
conditions applies:
(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, or 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 if, as described in
division (D)(1) of section 2151.413 of the Revised Code,
the child was previously in the temporary custody of an
Ross App. No. 22CA17 28
equivalent agency in another state, 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 22-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.
(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 in this state
or another state.
{¶54} In the case at bar, the trial court found that the child cannot be
placed with either parent within a reasonable time or should not be placed
with either parent. On appeal, Appellant has not challenged this finding.4
Therefore, we do not address the issue.
4
We observe that Appellant states in his brief that the agency filed its permanent custody motion “more than 12 months after [the
child] was placed with the agency on January 16, 2021” and, thus, that “the analysis shifts to the best interest determination.” We
note, however, that for purposes of R.C. 2151.414(B)(1)(d) “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.” R.C. 2151.414(B)(1)(e). According to this statute, when the agency filed its February 28,
2022 permanent custody motion, the child had not yet been in the agency’s temporary custody for 12 or more months of a consecutive
22-month period.
Ross App. No. 22CA17 29
{¶55} R.C. 2151.414(D)(1) requires a trial court to consider all
relevant, as well as specific, factors to determine whether a child’s best
interest will be served by granting a children services agency permanent
custody. The specific factors include: (1) the child’s interaction and
interrelationship with the child’s parents, siblings, relatives, foster parents
and out-of-home providers, and any other person who may significantly
affect the child; (2) the child’s wishes, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the child’s
maturity; (3) the child’s custodial history; (4) the child’s need for a legally
secure permanent placement and whether that type of placement can be
achieved without a grant of permanent custody to the agency; and (5)
whether any factors listed under R.C. 2151.414(E)(7) to (11) apply.
{¶56} Determining whether granting permanent custody to a children
services agency will promote a child’s best interest involves a delicate
balancing of “all relevant [best interest] factors,” as well as the “five
enumerated statutory factors.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, 862 N.E.2d 816, ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit
Nos. 24097 and 24099, 2008-Ohio-3773, ¶ 28; In re N.W., 10th Dist.
Franklin Nos. 07AP-590 and 07AP-591, 2008-Ohio-297, ¶ 19. However,
Ross App. No. 22CA17 30
none of the best interest factors requires a court to give it “greater weight or
heightened significance.” C.F. at ¶ 57. Instead, the trial court considers the
totality of the circumstances when making its best interest determination. In
re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-
142, ¶ 24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶ 46.
In general, “[a] child’s best interest is served by placing the child in a
permanent situation that fosters growth, stability, and security.” In re
C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, ¶
66, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d
1055 (1991).
{¶57} In the case at bar, we do not believe that the trial court’s best
interest determination is against the manifest weight of the evidence. The
agency presented substantial clear and convincing evidence that placing the
child in its permanent custody would serve the child’s best interest.
Child’s Interactions and Interrelationships
{¶58} The evidence shows that the child has been living with the
same foster family since shortly after her birth. She has bonded with the
foster family, and the foster family plans to adopt the child if the court grants
the agency permanent custody.
Ross App. No. 22CA17 31
{¶59} Appellant had weekly visits with the child and did not always
maintain a consistent visitation schedule. Shortly before the agency filed its
permanent custody motion, Appellant told the caseworker that he had missed
several visits in December 2020 and January 2021 because he needed to take
a break. A parent who believes that he or she needs a break from visiting his
or her child in the temporary custody of a children services agency does not
display the level of commitment indicative of a healthy, nurturing, and
committed parent-child relationship.
Child’s Wishes
{¶60} The record shows that the child is far too young to be able to
express her wishes directly to the court. The guardian ad litem
recommended that the court grant the agency permanent custody of the
child. In re I.A.-W., 8th Dist. Cuyahoga No. 111217, 2022-Ohio-1766, ¶ 37;
In re S.M., 4th Dist. Highland No. 14CA4, 2014–Ohio–2961, ¶ 32 (both
recognizing that R.C. 2151.414 permits juvenile courts to consider a child’s
wishes as child directly expresses or through the guardian ad litem).
Custodial History
{¶61} The child has never been in Appellant’s custody. She has been
in the agency’s temporary custody since shortly after her birth in January
Ross App. No. 22CA17 32
2021. While in the agency’s temporary custody, the child has lived in the
same foster home.
Legally Secure Permanent Placement
{¶62} “Although the Ohio Revised Code does not define the term
‘legally secure permanent placement,’ this court and others have generally
interpreted the phrase to mean a safe, stable, consistent environment where a
child’s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19,
2016-Ohio-793, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, *9
(Aug. 9, 2001) (implying that “legally secure permanent placement” means a
“stable, safe, and nurturing environment”); see also In re K.M., 10th Dist.
Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-4682, ¶ 28 (observing that
legally secure permanent placement requires more than stable home and
income but also requires environment that will provide for child’s needs); In
re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (stating that
mother unable to provide legally secure permanent placement when she
lacked physical and emotional stability and that father unable to do so when
he lacked grasp of parenting concepts); In re J.W., 171 Ohio App.3d 248,
2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.) (Sadler, J., dissenting)
(stating that a legally secure permanent placement means “a placement that
is stable and consistent”); Black’s Law Dictionary 1354 (6th Ed. 1990)
Ross App. No. 22CA17 33
(defining “secure” to mean, in part, “not exposed to danger; safe; so strong,
stable or firm as to insure safety”); Id. at 1139 (defining “permanent” to
mean, in part, “[c]ontinuing or enduring in the same state, status, place, or
the like without fundamental or marked change, not subject to fluctuation, or
alteration, fixed or intended to be fixed; lasting; abiding; stable; not
temporary or transient”). Thus, “[a] legally secure permanent placement is
more than a house with four walls. Rather, it generally encompasses a stable
environment where a child will live in safety with one or more dependable
adults who will provide for the child’s needs.” M.B. at ¶ 56.
{¶63} Here, the evidence supports the trial court’s finding that the
child needs a legally secure permanent placement and that she cannot
achieve that type of placement without granting the agency permanent
custody. Although Appellant claims to have made significant strides
towards being able to provide the child with a stable, secure, and permanent
home, the trial court found otherwise. The court noted that Appellant failed
to remain compliant with his drug treatment program and had been
terminated from the program only a few weeks before the permanent
custody hearing because he had tested positive for illegal drugs three times
within a three-month period. Furthermore, throughout the history of the
case, Appellant did not maintain a stable residence. He bounced from house
Ross App. No. 22CA17 34
to house and was homeless for a period of time. At the time of the
permanent custody hearing he was living with a friend. Thus, we do not
believe that the trial court’s finding that the child needs a legally secure
permanent placement and that she cannot achieve that type of placement
without granting the agency permanent custody is against the manifest
weight of the evidence.
{¶64} Moreover, even if Appellant complied with parts of the case
plan, as we have observed in the past, a parent’s case plan compliance may
be a relevant, but not necessarily conclusive, factor when a court considers a
permanent custody motion. In re B.P., 4th Dist. Athens No. 20CA13, 2021-
Ohio-3148, ¶ 57; In re T.J., 4th Dist. Highland No. 2016-Ohio-163, ¶ 36,
citing In re R.L., 9th Dist. Summit Nos. 27214 and 27233, 2014-Ohio-3117,
¶ 34 (“although case plan compliance may be relevant to a trial court’s best
interest determination, it is not dispositive of it”); In re S.C., 8th Dist.
Cuyahoga No. 102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a case
plan is not, in and of itself, dispositive of the issue of reunification”); accord
In re K.M., 4th Dist. Ross No. 19CA3677, 2019-Ohio-4252, ¶ 70, citing In
re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 46
(“[s]ubstantial compliance with a case plan is not necessarily dispositive on
the issue of reunification and does not preclude a grant of permanent custody
Ross App. No. 22CA17 35
to a children’s services agency”); In re N.L., 9th Dist. Summit No. 27784,
2015-Ohio-4165, ¶ 35 (“substantial compliance with a case plan, in and of
itself, does not establish that a grant of permanent custody to an agency is
erroneous”). “Indeed, because the trial court’s primary focus in a permanent
custody proceeding is the child’s best interest, ‘it is entirely possible that a
parent could complete all of his/her case plan goals and the trial court still
appropriately terminate his/her parental rights.’ ” W.C.J. at ¶ 46, quoting In
re Gomer, 3d Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-
Ohio-1723, ¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14, 2008-
Ohio-5227, ¶ 24 (“when considering a R.C. 2151.414(D)(1)(d) permanent
custody motion, the focus is upon the child’s best interests, not upon the
parent’s compliance with the case plan”). Thus, a parent’s case plan
compliance will not preclude a trial court from awarding permanent custody
to a children services agency when doing so is in the child’s best interest.
Id.{¶65} In the case sub judice, as we noted above, we believe that the
record contains ample clear and convincing evidence that placing the child
in the agency’s permanent custody is in her best interests. Furthermore,
contrary to Appellant’s argument that he “substantially complied with
several conditions of the case plan,” the trial court specifically found that
Ross App. No. 22CA17 36
Appellant completed the parenting-class requirement but he “did not
complete the other significant portions of the case plan.”
{¶66} In sum, all of the foregoing evidence supports the trial court’s
decision to grant the agency permanent custody of the child, and we are
unable to conclude that the trial court’s judgment is against the manifest
weight of the evidence.
{¶67} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s fourth assignment of error.
FIFTH ASSIGNMENT OF ERROR
{¶68} In his fifth assignment of error, Appellant asserts that the trial
court erred by granting the agency permanent custody of the child due to the
agency’s alleged failure to use reasonable efforts to place the child with
Appellant. He argues that the agency did not use reasonable efforts to
contact him at the start of the case. He further alleges that the agency did
not use reasonable efforts to be able to place the child with Appellant.
{¶69} When a trial court “removes a child from the child’s home or
continues the removal of a child from the child’s home,” R.C.
2151.419(A)(1) requires a trial court to determine whether a children
services agency “made reasonable efforts to prevent the removal of the child
from the child’s home, to eliminate the continued removal of the child from
Ross App. No. 22CA17 37
the child’s home, or to make it possible for the child to return safely home.”
“In determining whether reasonable efforts were made, the child’s health
and safety shall be paramount.” R.C. 2151.419(A)(1). The agency bears the
burden to prove that it has made reasonable efforts. R.C. 2151.419(A)(1).
{¶70} However, R.C. 2151.419(A)(1) applies only at “adjudicatory,
emergency, detention, and temporary-disposition hearings, and dispositional
hearings for abused, neglected, or dependent children * * *.” C.F., supra, at
¶ 41; accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19,
2016-Ohio-916, ¶ 72. Thus, “ ‘[b]y its plain terms, the statute does not
apply to motions for permanent custody brought pursuant to R.C. 2151.413,
or to hearings held on such motions pursuant to R.C. 2151.414.’ ” C.F. at ¶
41, quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041, 2004-
Ohio-5531, ¶ 30. Nonetheless, “[t]his does not mean that the agency is
relieved of the duty to make reasonable efforts” before seeking permanent
custody. Id. at ¶ 42. Instead, at prior “stages of the child-custody
proceeding, the agency may be required under other statutes to prove that it
has made reasonable efforts toward family reunification.” Id. Additionally,
“[if] the agency has not established that reasonable efforts have been made
prior to the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time.” Id. at ¶ 43.
Ross App. No. 22CA17 38
{¶71} In the case sub judice, appellant’s appeal does not originate
from one of the types of hearings specifically listed in R.C. 2151.419(A):
“adjudicatory, emergency, detention, and temporary-disposition hearings,
and dispositional hearings for abused, neglected, or dependent children.”
The agency, therefore, did not have the burden to prove at the permanent
custody hearing that it used reasonable efforts to reunify the family unless it
had not previously done so. Here, our review of the record reflects that the
trial court made multiple reasonable efforts findings before the agency filed
its permanent custody motion. Thus, the court did not need to again find
that the agency used reasonable efforts before it could grant the agency
permanent custody of the child. E.g., In re M.H.–L.T., 4th Dist. Washington
No. 17CA12, 2017-Ohio-7825, ¶ 64; In re S.S., 4th Dist. Jackson Nos.
16CA7 and 16CA8, 2017-Ohio-2938, ¶ 168.
{¶72} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s fifth assignment of error.
CONCLUSION
{¶73} Having overruled Appellant’s five assignments of error, we
affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Ross App. No. 22CA17 39
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant
shall pay costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross County Juvenile Court, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.