In re JF , 2024 Ohio 3311 ( 2024 )

[Cite as In re JF, 2024-Ohio-3311.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE J.F. :
No. 113778
A Minor Child :
[Appeal by S.F., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 29, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD23913547
Appearances:
Scott J. Friedman, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
MICHELLE J. SHEEHAN, P.J.:
Appellant S.F., mother of J.F., a minor child, appeals the juvenile
court’s grant of permanent custody of J.F. to the Cuyahoga County Division of Child
and Family Services (hereinafter, “CCDCFS” or the “Agency”). Mother alleges the
juvenile court’s decision was against the manifest weight of the evidence and that
she received ineffective assistance of counsel during the proceedings. Because we
find that the juvenile court made its decision to award permanent custody based
upon clear and convincing evidence and that Mother did not receive ineffective
assistance of counsel, we affirm the judgment.
RELEVANT FACTS AND PROCEDURAL HISTORY
On December 1, 2023, the Agency filed a complaint requesting a
disposition of permanent custody of J.F. who was born exposed to cocaine only two
days prior. On that same date, the Agency filed a motion for predispositional
temporary custody of J.F. and, following a hearing, J.F. was ordered placed in the
emergency temporary care and custody of CCDCFS. He was thereafter placed in
foster care.
The adjudicatory hearing on the Agency’s complaint was held on
February 28, 2024. Mother appeared at the hearing. The Agency moved to amend
the complaint, and Mother entered stipulations to the amended complaint that
alleged that J.F. was born exposed to cocaine, Mother needed to maintain sobriety,
Mother needed to address her mental health issues, and Mother needed to obtain
stable and appropriate housing. After the stipulations were entered, J.F. was found
to be abused and dependent. The juvenile court also determined at the hearing that
“the Agency has made reasonable efforts to prevent the removal, eliminate the
continued removal, or to make it possible for the child to return home.” The juvenile
court continued the case for a dispositional hearing.
The dispositional hearing was held on March 4, 2024, at which the
juvenile court incorporated the evidence entered at the February 28, 2024 hearing,
accepted into evidence a copy of a felony indictment then pending against Mother,
and heard testimony from CCDCFS worker Everett Williams, Mother, and the
guardian ad litem (“GAL”) for J.F.
Williams testified that the Agency received an abuse complaint that
J.F. was positive for cocaine at birth. He testified that a case plan was developed
and Mother was referred for assessment at New Visions. Mother did not comply
with the referral. He stated that after his involvement with the case, the Agency
contacted Mother five times after the referral and Mother agreed to comply with
services, but never did so. A visitation schedule was put in place; however, Mother
was arrested and jailed before the visitation could take place.
Williams further identified the felony indictment for which Mother
was then incarcerated and there was no timeline for her release. Williams also
testified that Mother had a prior child, E.F., who was placed in permanent custody
for similar reasons as the current case. Williams also testified that several family
members were contacted about caring for J.F., but none were able to do so.
Williams stated that because of Mother’s history and the persistence of the issues
that led to the removal of a child in the past, the Agency sought permanent custody
of J.F.
Mother testified that she did go for an assessment for treatment, but
because they wanted a urine sample and she did not want to wait for hours, she did
not stay. She testified on cross-examination that she did not follow up with the
referral. She also testified that while in jail she was addressing her mental health
issues with medication and explained to the juvenile court that she was more mature
and ready to be a parent to J.F.
The GAL submitted a report to the juvenile court and testified that she
was worried about continuing the case because Mother’s timeline for release was
uncertain and there was no ability to place J.F. with family.
On March 4, 2024, the juvenile court found in favor of the Agency on
its amended complaint and granted it permanent custody of J.F. In its journal entry,
the juvenile court made the following findings:
[T]he Court finds by clear and convincing evidence that a grant of
permanent custody is in the best interests of the child and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
. . . [T] he 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.
. . . [N]otwithstanding reasonable case planning and diligent efforts by
the agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the Mother and Alleged
Father have failed continuously and repeatedly to substantially remedy
the conditions causing the child to be placed outside the child’s home.
Mother has chronic mental illness and chemical dependency that is so
severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the Court holds the hearing in this matter.
Alleged Father has had no contact with the Agency.
Mother has neglected the child between the date of the original
complaint was filed by failure to regularly visit, communicate, or
support the child.
Alleged Father has neglected the child between the date of the original
complaint was filed by failure to regularly visit, communicate, or
support the child.
Mother has demonstrated a lack of commitment towards the child by
failing to regularly support, visit, or communicate with the child when
able to do so. Mother is currently incarcerated in Cuyahoga County Jail
[with one pending felony case and five pending misdemeanor cases].
...
Mother has had parental rights terminated involuntarily with respect
to a sibling of the child in case AD16913614.
LAW AND ARGUMENT
The Juvenile Court’s Grant of Permanent Custody Was Not Against the
Manifest Weight of the Evidence
Mother’s first assignment of error reads:
The juvenile court erred in terminating the Appellant’s parental rights,
in violation of her rights under the Fourteenth Amendment to the
United States Constitution and Article I, Section 16 of the Ohio
Constitution.
Mother argues that the juvenile court’s findings made in its grant of
permanent custody to the Agency were contrary to the evidence presented at the
hearing. She alleges the proceedings were done too quickly, arguing that because of
this, she could not remedy the problems that led to J.F.’s removal, the Agency could
not assist her with services needed for the case plan, and there was no evidence
Mother would not be able to provide an adequate permanent home within a year.
Further, because the first visitation time was scheduled in February, a short time
from the removal date in December, she argues that the evidence could not support
the juvenile court’s finding she failed to regularly visit, communicate, or support the
child. The Agency argues that the juvenile court made the requisite findings for a
grant of permanent custody and that those findings were supported by clear and
convincing evidence
R.C. 2151.414(B) provides that permanent custody of a child may be
awarded to a children services agency if the court finds, by clear and convincing
evidence, that (1) it is in the best interest of the child to grant permanent custody of
the child to the agency, and (2) that any of the conditions listed in
R.C. 2151.414(B)(1)(a)-(e) apply. Pursuant to R.C. 2151.414(B)(1)(a), permanent
custody may be granted where the child is not abandoned or orphaned, has not been
in temporary custody for 12 or more months, and “cannot be placed with either of
the child’s parents within a reasonable time or should not be placed with the child’s
parents.” R.C. 2151.414(E) provides that a court must find that a child cannot “be
placed with either parent within a reasonable time or should not be placed with
either parent” if it finds that any of the following conditions exist:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home. In determining
whether the parents have substantially remedied those conditions, the
court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and material
resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain
parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent
that is so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the court holds the hearing pursuant to division
(A) of this section or for the purposes of division (A)(4) of section
2151.353 of the Revised Code;
...
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the
child when able to do so, or by other actions showing an unwillingness
to provide an adequate permanent home for the child;
...
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section
2151.353 or 2151.415 of the Revised Code, or under an existing or
former law of this state, any other state, or the United States that is
substantially equivalent to those sections, and the parent has failed to
provide clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health, welfare, and
safety of the child.
R.C. 2151.414(E)(1)-(2), (4), (11).
In determining the best interests of a child,
the juvenile court is required pursuant to R.C. 2151.414(D)(1) to
consider “all relevant factors,” including, but not limited to the
following: (1) the interaction and interrelationship of the child 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 wishes of the child as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child; (3) the custodial history of the child; (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; and
(5) whether any of the factors set forth in R.C. 2151.414(E)(7) to (11)
apply. R.C. 2151.414(D)(1)(a)-(e).
In re B.M., 2020-Ohio-4756, ¶ 12 (8th Dist.). Under R.C. 2151.414(D), the juvenile
court is required to consider all the enumerated elements as well as any other
relevant factors. “There is not one element that is given greater weight than the
others pursuant to the statute.” In re Schaefer, 2006-Ohio-5513, ¶ 56.
When tasked with review of a trial court’s application of the clear-
and-convincing-evidence burden of proof, we “‘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 (1990), citing Ford v.
Osborne, 45 Ohio St. 1 (1887), paragraph two of the syllabus; In re Z.C.,
2023-Ohio-4703, ¶ 8. “When reviewing for manifest weight, the appellate court
must weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether, in resolving conflicts in 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.” In re Z.C. at ¶ 14,
citing Eastley v. Volkman, 2012-Ohio-2179, ¶ 20.
The juvenile court found that R.C. 2151.414(B)(1)(a) applied where it
determined “[J.F.] has not been in temporary custody of the Cuyahoga County
Division of Children and Family Services for twelve (12) or more months of a
consecutive twenty-two month period . . . [and J.F.] cannot be placed with either of
the child’s parents within a reasonable time or should not be placed with the child’s
parents.”
In doing so, it found pursuant to R.C. 2151.414(E)(1) that
notwithstanding reasonable case planning and diligent efforts by the
[A]gency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the Mother and Alleged
Father have failed continuously and repeatedly to substantially remedy
the conditions causing the child to be placed outside the child’s home.
The juvenile court found pursuant to R.C. 2151.414(E)(2) that
Mother has chronic mental illness and chemical dependency that is so
severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated,
within one year after the Court holds the hearing in this matter.
The juvenile court found pursuant to R.C. 2151.414(E)(4) that
Mother has neglected the child between the date of the original
complaint was filed by failure to regularly visit, communicate, or
support the child.
The juvenile court found pursuant to R.C. 2151.414(E)(11) that
Mother has had parental rights terminated involuntarily with respect
to a sibling of the child in case AD16913614.
After making any one of these findings, the juvenile court was required to find that
J.F. could not “be placed with either parent within a reasonable time or should not
be placed with either parent.” R.C. 2151.414(E).
The record revealed there was clear and convincing evidence to
support these findings. The Agency made reasonable efforts by putting a case plan
in place and contacting Mother on a regular basis for follow through with the case
plan. Mother did not follow through with seeking substance abuse treatment or seek
mental health treatment and did not remedy the conditions causing J.F. to be placed
in Agency custody. There was no evidence that Mother was able to meet J.F.’s basic
needs or that she attempted to regularly visit, communicate, or support J.F. after
removal. Additionally, Mother had another child placed into the permanent custody
of the Agency for similar reasons as J.F.’s removal and she did not present any
evidence she could presently provide a legally secure placement for J.F.
The record also indicates the trial court considered the factors
enumerated in R.C. 2151.414(D)(1) and found that the grant of permanent custody
to the Agency was in the best interests of J.F. The evidence in the record supports
this finding where J.F. was removed from the hospital after being born exposed to
cocaine, Mother had a lengthy history of unaddressed problems with substance
abuse and her mental health in the past, Mother did not engage with the case plan
implemented after J.F. was removed, and Mother had another child removed from
her care in the past for similar reasons. Further, the GAL recommended the grant
of permanent custody, citing the facts that Mother had not addressed the problems
from the past and that she was currently incarcerated for an indeterminate amount
of time.
Mother argues that the proceedings were held too quickly for her to
have made any progress as to the case plan and too quickly to establish she did not
regularly support, care for, or visit J.F. However, there is no requirement that the
trial court delay proceedings. The record indicates that Mother never attempted to
visit J.F. or provide care or support. Instead, it reveals the Agency referred Mother
for services, she did not comply with the referral, she failed to schedule any further
services, and her history with the Agency showed a failure to address similar
substance abuse and mental health. As such, the greater weight of the evidence
established that permanent custody was in J.F.’s best interests and we are not
persuaded by Mother’s argument that the timing of the proceedings belied the trial
court’s findings. Accordingly, we cannot say that the juvenile court clearly lost its
way and created such a manifest miscarriage of justice that the grant of permanent
custody should be reversed.
The first assignment of error is overruled.
The Record Does Not Show That Mother Suffered
Ineffective Assistance of Counsel
Mother’s second assignment of error reads:
The Appellant was denied the effective assistance of counsel, in
derogation of her rights under the Sixth Amendment to the United
States Constitution, and Article I, Section 10 the Ohio Constitution.
Ohio courts apply the test for ineffective assistance of counsel used in
criminal cases applies for permanent custody cases. E.g., In re Z.J., 2020-Ohio-383,
¶ 20 (8th Dist.). In order to prove ineffective assistance of counsel, the appellant
has the burden of proof to show “‘(1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and
(2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different.’” Id., quoting State v. Perez,
2009-Ohio-6179, ¶ 200.
Mother argues she received ineffective assistance of counsel because
counsel advised her to stipulate to the amended complaint. She further argues that
counsel should have requested a continuance of the dispositional and adjudicatory
hearings because she was incarcerated and the hearings occurred within a relatively
short amount of time from J.F.’s removal, which time frame did not allow Mother
to show compliance with the case plan. The Agency argues Mother has not shown
ineffective of counsel because she did not, and cannot, show she suffered prejudice
by counsel’s performance.
“[T]he decision to enter into a stipulation, including the stipulation of
fact, is a tactical decision.” In re J.H., 1998 Ohio App. LEXIS 3923, *14 (6th Dist.
Aug. 28, 1998), citing State v. Green, 66 Ohio St.3d 141, 148 (1993). “Absent a
showing that counsel failed to research the facts or the law, or that he was ignorant
of a crucial defense when he or she made a tactical choice, a reviewing court will
defer to counsel’s judgment in the matter.” Id., citing State v. Clayton, 62 Ohio St.2d
45, 49 (1980). In this case, counsel negotiated amendments to the complaint that
did not detail the substance abuse and mental-health issues that were alleged in the
original complaint. The juvenile court spoke with Mother and determined she
wished to stipulate to the amended complaint. Additionally, Mother has not
demonstrated on appeal that, had she not entered the stipulations, the Agency
would not have been able to present evidence to establish the allegations in the
complaint so that the result of the adjudicatory hearing would have been different,
especially where the Agency alleged in the complaint that J.F. was born exposed to
cocaine, a fact readily provable and a condition that would make J.F. an abused child
pursuant to R.C. 2151.031(D). In re Blackshear, 90 Ohio St.3d 197, 200 (2000).
As to a delay of the dispositional hearing, Mother challenges the
findings of the juvenile court arguing that had she been given a continuance, she
could have visited J.F., found suitable housing, and addressed her substance abuse
and mental health issues. However, Mother has not shown that a continuance
would have been granted or that even with a continuance, she would be able to
resolve the issues that led to J.F.’s removal, especially considering her history with
the Agency and longstanding substance abuse and mental-health issues.
In light of the record before us, we cannot conclude that because of
counsel’s advice to stipulate to the amended complaint and decision not to request
a continuance of the hearings that there was a reasonable probability the result of
the proceedings would have been different.
The second assignment of error is overruled.
CONCLUSION
The juvenile court’s grant of permanent custody was not against the
manifest weight of the evidence. The juvenile court’s finding that J.F. could not be
placed with Mother within a reasonable time or should not be placed with Mother
pursuant to R.C. 2151.414(E) was based on clear and convincing evidence. The
Agency engaged in reasonable case planning and diligent efforts, and Mother failed
to substantially remedy the conditions causing J.F. to be removed. Mother has
chronic mental illness and chemical dependency that is so severe that it made her
unable to provide an adequate permanent home. Mother neglected J.F from the
date of the original complaint to the dispositional hearing date, and Mother had
parental rights terminated involuntarily with respect to a sibling of J.F. Pursuant to
R.C. 2151.414(B), the juvenile court’s finding that permanent custody was in J.F.’s
best interests was supported by evidence that Mother had a lengthy history of
ongoing unaddressed problems with substance abuse and mental health, did not
engage with the case plan implemented after J.F. was removed, and had another
child removed from her care in the past for similar reasons.
Mother did not show that she received ineffective assistance of
counsel where she could not show that the decision to stipulate to an amended
complaint at the adjudicatory hearing was anything more than a tactical decision or
that the outcome of the hearing would have been different had she not stipulated.
Further, Mother did not show that had counsel requested a continuance, it would
have been granted or that the outcome of the proceeding would have been different.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, 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.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., and
SEAN C. GALLAGHER, J., CONCUR