In re J.R. , 2023 Ohio 1920 ( 2023 )

[Cite as In re J.R., 2023-Ohio-1920.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re J.R. Court of Appeals No. L-23-1026
Trial Court No. JC 21287051
DECISION AND JUDGMENT
Decided: June 9, 2023
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Jeremy G. Young, for appellee.
Autumn D. Adams, for appellant.
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DUHART, P.J.
{¶ 1} This is an appeal by appellant, P.M., from the January 26, 2023 judgment of
the Lucas County Court of Common Pleas, Juvenile Division, which terminated his
parental rights to minor child, J.R., and granted permanent custody of J.R. to appellee,
Lucas County Children Services (“LCCS” or “agency”). For the reasons that follow, we
affirm.
{¶ 2} Appellant set forth one assignment of error:
Appellant was not afforded effective assistance of counsel.
Background
{¶ 3} Appellant is the father of J.R., who was born in March 2007. J.R.’s mother
is H.R. Mother is not involved in this appeal.
{¶ 4} For most of J.R.’s life, she lived with appellant, and he had custody of her.
Mother was not involved in J.R.’s life. On November 23, 2021, J.R. ran away from home
and sought help at a gas station, claiming appellant sexually abused her. That same day,
LCCS received emergency custody of J.R., and she was placed in a foster home.
Appellant was arrested and charged with six counts of rape of J.R. He remained
incarcerated throughout the entirety of the case.
{¶ 5} On November 24, 2021, LCCS filed a complaint in dependency, neglect and
abuse with respect to J.R., and requested a shelter care hearing. A hearing was held,
LCCS was awarded interim temporary custody of J.R. and a no-contact order between
appellant and J.R. was issued.
{¶ 6} On January 31, 2022, an adjudication hearing was held and J.R. was found
to be dependent, neglected and abused. That same day, disposition occurred, and the
juvenile court found it was in J.R.’s best interest to be placed in LCCS’s temporary
custody. The no-contact order between appellant and J.R. was continued.
{¶ 7} A reasonable efforts hearing was held on May 31, 2022, where the court
found LCCS continued to make reasonable efforts. J.R. had been spending time with
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mother on zoom. On November 23, 2022, an annual review hearing was held, where it
was reported that mother had moved out of state for a job. LCCS had filed a motion for
permanent custody and to extend temporary custody. The court found LCCS continued
to make reasonable efforts, and it was in J.R.’s best interest to extend LCCS’s temporary
custody.
{¶ 8} On January 18, 2023, the permanent custody hearing was held; neither
mother nor appellant attended. The court issued its judgment entry on January 26, 2023,
awarding permanent custody of J.R. to LCCS. Appellant appealed.
Shelter Care Hearing/Dispositional Hearing
Assessment Caseworker Nicole Dembski
{¶ 9} At the hearings, Dembski, the assessment caseworker for J.R., testified to
the following. LCCS received an emergency referral on November 23, 2021, based on
allegations by J.R. that she was sexually abused by her father, appellant. J.R. had gone to
a gas station and told an employee about the on-going abuse by appellant. J.R. was taken
to the police station where she was interviewed, after which she was brought to the
agency. Dembski met with J.R. briefly, then Dembski went to the police station where
appellant was interviewed by police; Dembski was present for that interview. At the
completion of his interview, appellant was arrested, was charged with six counts of rape,
and was held in jail. Appellant’s bond was set at $250,000, no ten percent. LCCS
requested an ex parte order, which was granted, and J.R. was placed in the emergency
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custody of the agency; J.R. spent the night in foster care. A no-contact order was issued
between appellant and J.R.
{¶ 10} On November 24, 2021, Dembski interviewed J.R., who disclosed that
appellant starting sexually assaulting her when she was seven years old, with the last
incident occurring five days prior. J.R. detailed the abuse, including that she was
penetrated by appellant, she was made to watch pornography, and she was made to
perform sex acts on appellant.
{¶ 11} Dembski testified J.R.’s mother did not have custody of J.R., as mother had
substance abuse issues, so appellant had received custody of J.R. in 2013. J.R. reported
that she made disclosures of the sexual abuse to several family members, starting when
she was eight years old, but she felt they did not believe her.
{¶ 12} Dembski testified, with respect to the allegations in the complaint, that “the
disposition was substantiated sexual abuse.” She noted that appellant did not admit to any
of the allegations.
Dr. Randall Schlievert
{¶ 13} At the dispositional hearing, Dr. Schlievert, a medical doctor and an expert
in pediatric child abuse, testified that he conducted a medical evaluation of J.R. on
November 24, 2021. The evaluation was undertaken for the purposes of medical
diagnosis and treatment of alleged sexual abuse. A female social worker did the bulk of
the interview while Dr. Schlievert was in the room typing and adding questions as
needed. A physical examination of J.R. was performed and it was normal, which is not
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unusual in a sexual abuse case. A vast majority of children, teenagers and adults will
have normal exams, especially if the abuse occurred more than three or four days prior.
{¶ 14} Dr. Schlievert made a diagnosis of likely sexual abuse, based primarily on
the medical history provided by J.R., which included the kind of sex acts appellant made
J.R. do, the things appellant would say to J.R. after the acts occurred, and threats
appellant made to J.R. to not tell. In addition, J.R. did not have contact with her mother,
so mother was not there to protect J.R. The fact that J.R. “ran away for nothing positive,
not a custody dispute, not a I want to go live with mom instead of dad dispute. Basically
I ran away because I couldn’t take it anymore.” The doctor authored a report with more
details of the medical history given by J.R. The doctor stated he does not make a
diagnosis of likely sexual abuse often, and when he does, he is willing to state under oath
that the diagnosis is accurate to the best of his training, background and experience.
{¶ 15} Dr. Schlievert recommended that J.R. have counseling, a stable placement
and no contact with appellant.
Ongoing Caseworker Angela Duwve
{¶ 16} At the dispositional hearing, Duwve, an ongoing caseworker for J.R.,
testified to the following. Duwve was assigned J.R.’s case following the first ongoing
caseworker, Laura Rubley. Duwve reviewed the case plan services for J.R.’s family,
noting the case plan goal for J.R. is not reunification with appellant, and appellant had no
services, as he must first resolve his pending criminal charges.
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The Permanent Custody Hearing
{¶ 17} LCCS called two witnesses to testify at the permanent custody hearing.
The relevant testimony is summarized below.
Caseworker Carrie Tester
{¶ 18} Tester testified she was assigned as the ongoing caseworker for J.R. on
June 7, 2022. Tester spoke with appellant on December 15, 2022, when he reached out to
her on the phone. He had called Tester and left messages on her office voicemail, which
indicated it was a call from the jail, 10-20 times a day, on average. Tester described the
call, where appellant “attempted to litigate his case in regards to the rape of [J.R]. He
wanted to engage in conversation about the circumstances and the evidence that he
considered on his side to prove him to be not guilty.” Tester listened. Appellant said his
desired outcome of the conversation was to drop the LCCS case. He did not inquire
about J.R. Tester asked if appellant knew of any potential family members with whom
J.R. could be placed, but appellant did not answer that question, as he said it was not
necessary to find another relative, because J.R. should return home to him.
{¶ 19} Tester recalled J.R. came in to care when she, J.R., left her home with
appellant, went to a gas station and asked for help from the staff. J.R. disclosed that she
had been raped by her father more than once and did not want to go home. The staff
reached out to LCCS, and police became involved. Appellant was arrested and charged
with six counts of rape. He has been in jail for the entire duration of the case.
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{¶ 20} J.R. did not have a relationship with her mother. It was Tester’s
understanding that mother gave appellant custody of J.R. at birth.
{¶ 21} There were no services on the case plan for appellant because of his
criminal charges. Appellant was ordered to have no contact with J.R. Case plan services
for J.R. were counselling, and she sees a counselor once a week. J.R. is doing very well
in school, she has friends and she is in the band. J.R. also has a job two evenings a week.
{¶ 22} J.R. is in foster care and has an excellent relationship with her foster
family; she is thriving. This is the only foster home J.R. has had since she came into
care. J.R. has been in LCCS’s temporary custody since November 2021. LCCS is
seeking permanent custody of J.R., as it is in J.R.’s best interest not to be reunified with
appellant, due to him being incarcerated and the pending charges. The foster family is
not seeking to adopt J.R., but she can remain in the foster home while LCCS has
permanent custody of her for the next three years. In the meantime, LCCS is exploring
some leads for foster home that will adopt J.R.
{¶ 23} Tester testified J.R. indicated she did not want to return to appellant’s care.
J.R. is very comfortable in her foster home.
GAL Christine Caryer
{¶ 24} Caryer testified she is the guardian ad litem (“GAL”) for J.R., and she was
appointed on December 1, 2021. Caryer undertook an independent investigation,
including reviewing court records, school records, meeting with J.R. almost once a
month, and meeting and talking with mother. Caryer prepared a report, filed December
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29, 2022. Caryer did not talk with appellant, as he did not contact her, and she never
tried to contact him. Caryer was aware that appellant was charged with six counts of rape
of J.R., and J.R. was adjudicated abused, neglected and dependent by the juvenile court.
{¶ 25} Caryer testified J.R. is doing great, J.R. is happy where she is and J.R. is
adamant that she does not want to be reunified with appellant.
{¶ 26} In her report, Caryer recommended it was in J.R.’s best interest that
permanent custody be awarded to the agency, and that J.R. stay in her current placement
unless and until she is adopted. Caryer testified J.R. has come a long way and deserves to
be in a safe, stable home, which is where J.R. is now. J.R. does not feel safe with
appellant. Caryer noted in her report that J.R. reported that she disclosed the abuse to her
maternal and paternal relatives, but the relatives failed to intervene.
Juvenile Court Decision
{¶ 27} On January 26, 2023, the court issued its judgment entry granting
permanent custody of J.R. to the agency. The court found, by clear and convincing
evidence under R.C. 2151.414(B)(1)(a), that J.R. could not and should not be placed with
either parent within a reasonable time, and pursuant to R.C. 2151.414(D)(1), it was in
J.R.’s best interest to grant permanent custody to LCCS.
{¶ 28} The court detailed the testimony and evidence offered at trial, upon which
it relied in reaching its findings of fact and conclusions. The court noted the case plan
services offered to J.R., which included counseling, and that no services were offered to
father, due to his incarceration. The court observed that father has not visited J.R. since
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his incarceration in November 2021, due to his criminal charges and the no-contact
orders.
{¶ 29} The court noted the caseworker and GAL testified that permanent custody
is in J.R.’s best interest, and the GAL testified that J.R. wishes to be adopted, and does
not want contact with her father. The court observed that J.R. has been in the custody of
LCCS since November 23, 2021, and she is doing extremely well in her foster home,
given the facts of the case.
{¶ 30} The court found that J.R. needs a legally secure permanent placement, and
that goal cannot be achieved with either of her parents. The court determined no
evidence was presented to convince the court that J.R.’s father can provide a legally
secure permanent placement for her. Rather, the court had grave concerns about J.R. in
her father’s care and found it would be contrary to her safety to return to him.
{¶ 31} As to relatives, the court found that no relatives came forward to express an
interest in J.R., that were suitable for placement. The court noted the GAL testified that
J.R. made disclosures to both maternal and paternal relatives of the sexual abuse she was
suffering, which went unheeded, and it was a stranger in the community who took action
to keep J.R. safe.
{¶ 32} The court concluded R.C. 2151.414(E)(1), (5) and (15) applied, and found,
as to R.C. 2151.414(E)(15), that father committed abuse under R.C. 2151.031, against the
child, and the court had adjudicated J.R. abused, neglected, and dependent, by clear and
convincing evidence. The court acknowledged that father has not been convicted, and he
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remains innocent until proven guilty, yet the court determined that the seriousness,
nature, or likelihood of recurrence of the abuse makes J.R.’s placement with her father a
threat to J.R.’s safety.
Assignment of Error
{¶ 33} Appellant argues his counsel was ineffective because counsel did not
secure appellant’s attendance at hearings in this case, and most importantly, counsel
failed to secure appellant’s presence for the permanent custody trial. Appellant maintains
the permanent custody trial was the last chance for him to speak, and a reasonable and
competent attorney would have had appellant brought over from the jail. Appellant noted
his attorney had almost two months to file a motion to convey.
{¶ 34} Appellant acknowledges it is his burden to prove that this ineffective
assistance of counsel prejudiced him. Appellant submits that twice in the permanent
custody order the judge stated she made her findings in part because no contrary evidence
was presented. Appellant notes that the trial court admitted he maintained his
presumption of innocence, but due to appellant’s inability to schedule a criminal jury trial
fast enough to fit the juvenile court’s schedule, he, in essence, lost that presumption of
innocence.
{¶ 35} Appellant argues that had he been conveyed at any point in this case to sit
in front of the court and be permitted to take the stand, maybe someone other than his
counsel could hear his side of the story, as he maintains his innocence, and he could have
elaborated about J.R.’s mental health struggles and how that could play into her
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accusations. In addition, appellant could have provided specific names of relatives who
could care for J.R., which would have allowed for legal custody only.
{¶ 36} Appellant also asserts his counsel was ineffective for failing to request a
six-month continuance of the case so appellant’s criminal case could be wrapped up.
Appellant contends J.R.’s case had four more months on it, and an entire criminal trial
can be held in that time. Appellant argues it would not have caused any bit of harm to
J.R. for the case to stay open for the maximum amount of time allowed by law so he had
every opportunity to present his evidence and confront these accusations.
{¶ 37} In response, LCCS notes that appellant argues that he was not provided
effective assistance of counsel because he was not conveyed to the trial, thereby
prejudicing his case. LCCS further observes that appellant does not challenge the two-
pronged test required for a court to award permanent custody of a child to a public
children services agency, he does not challenge the trial court’s finding that J.R. cannot
or should not be returned to her parents, and he does not challenge the finding that
permanent custody is in J.R.’s best interest.
{¶ 38} LCCS asserts that appellant’s counsel effectively cross-examined witnesses
at the trial, presented appellant’s argument that permanent custody should not be granted
to the agency, and a full record of the proceedings was made. LCCS contends that
appellant fails to make any plausible arguments that anything would have changed the
outcome of the trial, including having his lawyer file a motion to convey, having
appellant present at trial or having a different lawyer.
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Law
{¶ 39} To prevail on a claim for ineffective assistance of counsel, appellant must
show trial counsel’s performance fell below an objective standard of reasonable
representation and prejudice resulted from counsel’s deficient performance. State v.
Bradley, 42 Ohio St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the syllabus,
following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Strickland at 688.
Analysis
{¶ 40} Appellant argues his trial counsel was ineffective because counsel did not
ensure that appellant could attend any of the hearings, and in particular, the permanent
custody hearing, so appellant could testify that he was innocent, and appellant could have
elaborated about J.R.’s mental health struggles and how those struggles could play into
her accusations.
{¶ 41} As discussed above, the juvenile court recognized that father had not been
convicted of the criminal charges, and remained innocent until proven guilty. Yet, the
juvenile court adjudicated J.R. abused, neglected and dependent, by clear and convincing
evidence. We note that evidence before the juvenile court included Dr. Schlievert’s
diagnosis of likely sexual abuse of J.R. by her father, and the doctor’s testimony and
report regarding J.R.’s medical history describing the sex acts appellant made J.R. do,
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what appellant said to J.R. after the sex acts, and the threats appellant made to J.R. not to
tell about the sex acts.
{¶ 42} Upon a thorough review of the record, we find no indication that there
would have been a different result had appellant’s counsel filed a motion to convey so
appellant could attend the hearings in the proceedings regarding J.R. and testify. We
observe there was evidence presented at the permanent custody hearing, in caseworker
Tester’s testimony, that appellant told her about the circumstances which he considered
were on his side to prove him to be not guilty. Thus, the fact that appellant sought to add
extra proof that he maintained his innocence would have been cumulative, and does not
support a finding that the outcome of the juvenile proceedings would have been different.
{¶ 43} Given the abundance of evidence in the record by the caseworkers, the
GAL, and Dr. Schlievert, an expert in pediatric child abuse, concerning J.R.’s likely
sexual abuse by appellant, we find that appellant has not shown that his trial counsel’s
performance fell below an objective standard of reasonable representation or that
prejudice resulted because trial counsel did not file a motion to convey or secure
appellant’s attendance at the juvenile court hearings. Therefore, we find that appellant
has not sustained his burden to prove ineffective assistance of trial counsel. Accordingly,
appellant’s assignment of error is not well-taken.
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{¶ 44} The judgment of the Lucas County Court of Common Pleas, Juvenile
Division, is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24. The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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