In re M.U. ( 2014 )


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  • [Cite as In re M.U., 
    2014-Ohio-1640
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    IN RE: M.U., C.U., and J.D.              :            APPEAL NOS. C-130809
    C-130827
    :             TRIAL NO. F07-2858
    :                  O P I N I O N.
    Appeals From: Hamilton County Juvenile Court
    Judgment Appealed From Is: Affirmed
    Date of Judgment Entry on Appeal: April 18, 2014
    Susannah M. Meyer, for Appellant Mother,
    Erik Laursen, for Appellants M.U. and C.U.,
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee,
    Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
    and Family Services,
    Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis, for
    Appellee Guardian Ad Litem.
    Please note: this case has been removed from the accelerated calendar.
    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    D INKELACKER , Judge.
    {¶1}    On November 22, 2013, the trial court terminated the parental rights
    of mother to her three children, M.U., C.U., and J.D.       Mother and two of her
    children, M.U. and C.U., now appeal. We affirm the decision of the trial court.
    {¶2}    The Hamilton County Department of Job and Family Services
    (“HCJFS”) became involved in the lives of mother’s children in 2007 when it filed a
    complaint alleging that the children were dependent. Mother suffered from mild
    mental retardation, and HCJFS was concerned that she was unable to provide a safe
    environment for the children. Her care for the children was inconsistent and, at
    times, inadequate. In addition, HCJFS was concerned with mother’s involvement
    with men who presented a risk to the children. One man from Iowa moved in with
    mother after she had known him for about one week through only telephone
    conversations. This man had a history of substance abuse and a criminal record.
    While living in the home, he refused to participate in either a diagnostic or
    substance-abuse assessment through HCJFS. Eventually, allegations arose that the
    man was sexually assaulting one of the children. An investigation commenced, but
    was halted when the child refused to cooperate with workers from the Mayerson
    Center. Mother eventually obtained a restraining order against him. The magistrate
    determined that the children could remain with mother, with various protective
    orders in place, and a pending motion to terminate her parental rights was denied in
    June 2008.
    {¶3}    One month later, HCJFS filed a new complaint alleging that the
    children were neglected and dependent, and requesting temporary custody. The
    home had bed bugs, and this prevented the children from attending the protective
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    daycare that had been part of the June 2008 order. In addition, HCJFS alleged that
    mother was not attending to the children’s basic needs. M.U. had glass embedded in
    her foot, J.D. was wearing a filthy diaper, and all three children were dirty. HCJFS
    further alleged that the home was filthy, and that the children were not receiving
    proper nutrition or medical care. The magistrate adjudicated the children dependent
    and granted the request for temporary custody.       Mother was offered numerous
    programs to help her improve her parenting skills.
    {¶4}   At a case review hearing one year later, HCJFS announced the
    decision to again seek termination of mother’s parental rights. While mother had
    made some progress with her parenting skills, she did not seem to be making lasting
    changes in her behavior or decision-making. In addition, HCJFS had learned that
    mother had begun seeing a registered sex offender. This man, whom mother had
    met on the internet, had been convicted of a sex offense involving a minor. She also
    became involved with another man, with whom she had a child that was placed with
    the father’s parents. As a result of these relationships, HCJFS was concerned that
    she was still making bad decisions regarding the men with whom she involved
    herself.
    {¶5}   After conducting the permanent-custody trial, the magistrate
    determined that mother’s progress with the various programs in which she had been
    enrolled demonstrated that she had advanced to the point where the children could
    return to her custody. Regarding her judgment about men, the magistrate noted his
    concern that this issue had not been addressed in her counseling, and determined
    that it could properly be addressed through counseling and the issuance of a
    protective order requiring that mother have no other adult living in the home and
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    that she report the identity of any adult who had regular contact with the children to
    HCJFS and the children’s guardian ad litem.
    {¶6}    On June 11, 2012, HCJFS filed an amended complaint alleging that
    the children were dependent, and seeking permanent custody. The agency once
    again complained that mother was exercising poor judgment when it came to the
    men with whom she associated. The agency presented evidence that mother had
    violated the court’s protective orders by allowing at least two men to live in her home
    and have ongoing contact with the children without providing notice to HCJFS or the
    children’s guardian.   She actively concealed her relationships and the children’s
    contact with these men, and indicated that she did not believe that she was required
    to comply with the court’s orders for protective supervision. The children reported
    that at least one of the men was mean, had stolen property from mother, had hit the
    children, and had disciplined them without mother’s knowledge. The identities and
    background of the men were unknown—other than the fact that the children knew
    one of them as “Michael”—because HCJFS was unable to investigate them. The
    magistrate found the children to be dependent and granted HCJFS’s motion for
    permanent custody. The trial court overruled the objections filed by M.U. and C.U.,
    as well as those filed by mother.
    {¶7}    In her first assignment of error, mother claims that her counsel was
    ineffective for failing to seek dismissal of HCJFS’s motion for permanent custody
    because the trial court failed to timely rule on it. To have the case reversed on a
    claim of ineffective assistance of counsel, mother must prove that counsel violated an
    essential duty that he owed to her and that she was prejudiced by the violation. See
    State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989); see also Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). Judicial scrutiny
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    of counsel's performance must be highly deferential. An appellant must overcome
    the presumption that, under the circumstances, the challenged action might be
    considered sound trial strategy. Strickland at 689. An appellant is not deprived of
    effective assistance of counsel when counsel chooses, for strategic reasons, not to
    pursue every possible trial tactic. State v. Brown, 
    38 Ohio St.3d 305
    , 319, 
    528 N.E.2d 523
     (1988).
    {¶8}    R.C. 2151.35(B)(1) requires that, when the state seeks permanent
    custody of a child, the dispositional hearing on that motion must be held within 90
    days. If it is not, “the court, on its own motion or the motion of any party or the
    guardian ad litem of the child, shall dismiss the complaint without prejudice.”
    {¶9}    Mother argues that trial counsel is necessarily ineffective in failing to
    seek dismissal whenever the deadline set by R.C. 2151.35(B)(1) passes. We cannot
    accept this proposition. The problem with this argument is that it supposes that
    there is no situation in which competent trial counsel would decide that it was better
    to proceed with the matter than to seek dismissal.
    {¶10}   Dismissal of a parental-termination case without prejudice is not
    always the best outcome for the parties involved—even for the parents. The Ohio
    Supreme Court discussed a similar issue when analyzing another statute, R.C.
    2151.35(B)(3). That statute provides that a juvenile court must enter its disposition
    of a child adjudicated as abused, neglected or dependent within seven days of the
    conclusion of the hearing. In re Davis, 
    84 Ohio St.3d 520
    , 523, 
    705 N.E.2d 1219
    (1999). Finding that the statutory deadline was not mandatory, the court reasoned
    that:
    a missed deadline would require either that the child be returned to a
    potentially risky home situation, or that a new complaint be filed and
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    the process begun anew, delaying the final resolution of the issue even
    further. Such consequences would not serve the interests of children,
    who are too often relegated to temporary custody for too long.
    Id. at 523.
    {¶11}   The same rationale applies when considering the time limitation
    imposed by R.C. 2151.35(B)(1). There are certainly situations, such as the case at bar,
    in which competent counsel would not seek dismissal of the permanent-custody
    petition without prejudice.   Dismissal would have only delayed the proceedings
    further, and would not have allowed mother the continued opportunity to show
    compliance with the trial court’s orders and progress in the various programs in
    which she participated. And there is nothing in the record to suggest that dismissal
    would have ended the case. The history of the case indicates that HCJFS would
    certainly have refiled its request for the termination of mother’s parental rights had
    the case been dismissed without prejudice under the statute. Furthermore, there is
    no evidence in the record that mother even wanted to expedite the matter, as she had
    expressly waived “any objection to the completion of the adjudication and/or
    disposition within 90 days of the filing of the complaint” at the first hearing held
    after the 90-day period had expired. It is also worth noting that, not only was
    mother represented by trial counsel, but also, because of her mental health issues,
    the trial court had appointed her a guardian ad litem. So, in this case, mother’s
    interests were protected by two professionals over the course of this seven-year
    process.
    {¶12}   In light of this record, the detrimental impact that having the case
    begin anew would have had on all parties involved, and the deference that courts
    afford to the tactical decisions of trial counsel, we cannot say that mother has shown
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    that counsel was ineffective in this case. Therefore, we overrule her first assignment
    of error.
    {¶13}   In mother’s second assignment of error, she claims that the trial court
    erred when it failed to properly consider the factors listed in R.C. 2151.414(D)(1) in
    support of its decision to terminate her parental rights. In a related assignment of
    error, M.U. and C.U. specifically argue that the trial court failed to properly consider
    their wishes, as required by R.C. 2151.414(D)(1)(b). We disagree.
    {¶14}   Before it could grant permanent custody to HCJFS, the trial court was
    required to determine by clear and convincing evidence that permanent custody was
    in the best interest of the children. See R.C. 2151.414(B); In re Schaefer, 
    111 Ohio St.3d 498
    , 
    2006-Ohio-5513
    , 
    857 N.E.2d 532
    , ¶ 56. Under R.C. 2151.414(D)(1), to
    determine a child's best interest,
    the court shall consider all relevant factors, including, but not limited
    to, the following:
    (a) The interaction and interrelationship of the child with the child's
    parents, siblings, relatives, foster caregivers and out-of-home
    providers, and any other person who may significantly affect the child;
    (b) The wishes of the child, as expressed directly by the child or
    through the child's guardian ad litem, with due regard to the maturity
    of the child;
    (c) The custodial history of the child * * *;
    (d) The child's need for a legally secure permanent placement and
    whether that type of placement can be achieved without a grant of
    permanent custody to the agency;
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    O HIO F IRST D ISTRICT C OURT OF A PPEALS
    (e) Whether any of the factors in divisions (E)(7) to (11) of this section
    apply in relation to the parents and child.
    “There is not one element that is given greater weight than the others pursuant to the
    statute.” Schaefer at ¶ 56.
    {¶15}   We conclude that the trial court considered each of the factors listed
    above, including its consideration of the fact that M.U. and C.U. had “expressed a
    desire to return to Mother’s home.” But the trial court concluded that this one factor
    supporting reunification did not outweigh the factors that supported termination of
    mother’s parental rights. She refused to properly notify HCJFS and the children’s
    guardian ad litem about the men that she brought into the lives of her children, and
    stated that she did not think she had to follow the court’s order in that regard. And
    her decisions regarding men have been a problem in this case since its inception in
    2007. Additionally, the children’s guardian ad litem joined HCJFS in its opposition
    to reunification. Therefore, there was ample justification in the record to support the
    decision of the trial court to terminate mother’s parental rights, even though the
    children wished to return to her. We overrule mother’s second assignment of error
    and the sole assignment of error of M.U. and C.U.
    {¶16}   Having considered and overruled all assignments of error, we affirm
    the judgment of the trial court.
    Judgment affirmed.
    CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
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Document Info

Docket Number: C-130809 C-130827

Judges: Dinkelacker

Filed Date: 4/18/2014

Precedential Status: Precedential

Modified Date: 4/17/2021