In re K.M.D. , 2012 Ohio 755 ( 2012 )


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  • [Cite as In re K.M.D., 
    2012-Ohio-755
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    ROSS COUNTY
    In the Matter of:                :
    :
    K.M.D.                           :
    :         Case No. 11CA3289
    Adjudicated Dependent Child.     :
    :         DECISION AND
    :         JUDGMENT ENTRY
    :
    :         Filed: February 24, 2012
    ____________________________________________________________________
    APPEARANCES:
    Robert W. Bright, Middleport, Ohio, for Appellant.
    Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross
    County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
    ____________________________________________________________________
    Kline, J.:
    {¶1}    M.D. (hereinafter “Father”) appeals the judgment of the Ross County
    Court of Common Pleas, Juvenile Division. Following a hearing, the trial court entered
    an order that granted Ross County Job and Family Services’ (hereinafter the “Agency”)
    motion for permanent custody of Father’s daughter, K.M.D. (hereinafter “Child”). On
    appeal, Father first contends that the trial court erred when it determined that granting
    the Agency’s motion for permanent custody of Child was in Child’s best interest.
    Because there is competent, credible evidence supporting the trial court’s decision, we
    disagree. Next, Father contends that the trial court erred by denying his motions for a
    continuance so that the Agency could investigate Child’s paternal grandfather as a
    placement option for Child. Because the trial court did not abuse its discretion when it
    Ross App. No. 11CA3289                                                               2
    denied Father’s motions for a continuance, we disagree. Next, Father contends that the
    trial court erred by failing to hold the Agency in contempt for not completing its home
    investigation of Child’s paternal grandfather, despite the magistrate’s order that the
    Agency should conduct the investigation. Because Father cannot show that the trial
    court’s failure to hold the Agency in contempt was plain error, we disagree. Next,
    Father contends that the trial court erred by not placing Child with her paternal
    grandfather. Because (1) placing Child with her paternal grandfather was not an issue
    before the trial court and (2) competent, credible evidence supports the trial court’s
    decision to grant the Agency’s motion for permanent custody of Child, we disagree.
    Next, Father contends that the trial court erred by failing to find that the Agency did not
    make reasonable efforts to investigate Child’s paternal grandfather as a potential
    placement for Child. We disagree for two reasons. First, the Agency did not have a
    statutory duty to investigate Child’s paternal grandfather as a potential placement for
    Child before obtaining permanent custody. And second, competent, credible evidence
    supports the trial court’s finding that the Agency did make reasonable efforts to place
    Child with a relative. Next, Father contends that the trial court erred in finding that
    Child’s paternal grandfather did not show any interest in working with the Agency.
    Because competent, credible evidence supports the trial court’s finding that Child’s
    paternal grandfather did not show any interest in cooperating with the Agency when the
    Agency contacted him shortly after Child’s birth, we disagree. Next, Father contends
    that the trial court erred when it determined that, even though the Agency did not
    complete a home investigation of Child’s paternal grandfather, Child’s paternal
    grandfather introduced all relevant information when he testified at the July 14, 2011
    Ross App. No. 11CA3289                                                              3
    permanent custody hearing. Because Father has not articulated any additional
    information that could have been introduced at the hearing had the Agency conducted
    its home investigation of Child’s paternal grandfather, we disagree. Finally, Father
    contends that he received ineffective assistance of counsel at the permanent custody
    hearing. Because Father cannot demonstrate that he was prejudiced by any alleged
    deficient performance by his trial counsel, we disagree.
    {¶2}   Accordingly, we affirm the judgment of the trial court.
    I.
    {¶3}   H.S. (hereinafter “Mother”) gave birth to Child in a motel bathroom on
    October 1, 2010. Child was born addicted to opiates due to Mother’s prenatal drug use.
    On October 4, 2010, Child was placed in the temporary custody of the Agency, and
    Child has been in the continuous custody and care of the Agency since that time.
    {¶4}   Shortly after her birth, Child was taken to a hospital. Child spent the first
    several weeks of her life suffering from withdrawal due to her addiction to opiates. She
    was released from the hospital on December 14, 2010, and she was placed into the
    care of her foster parents, R.P. and T.P. Child has lived with her foster parents since
    her release from the hospital.
    {¶5}   Mother and Father have had essentially no contact with Child since her
    birth. The record indicates that Mother was arrested near the end of October 2010, on a
    drug charge, and she was released from jail on June 6, 2011. Mother’s contact with
    Child has been sporadic since her release from jail. The Agency developed a case plan
    for Mother. The goals of the case plan were (1) for Mother to seek substance abuse
    counseling and remain drug free and (2) for Mother to meet Child’s basic needs. As of
    Ross App. No. 11CA3289                                                              4
    the date of the permanent custody hearing, Mother had not completed her case plan,
    and she had not maintained regular contact with the Agency. Mother did not attend the
    permanent custody hearing, and Mother did not provide the Agency with an address
    where she could be contacted. Father was in prison on a felony drug conviction at the
    time of Child’s birth. Father’s sentence runs until February 17, 2013. Father has two
    previous drug convictions. Additionally, Mother and Father are the parents of two other
    children. Mother and Father had their parental rights to those children involuntarily
    terminated in April of 2010.
    {¶6}   On December 1, 2010, Child was adjudicated an “abused child” based on
    Mother’s prenatal drug use. And on December 4, 2010, the Agency moved for
    permanent custody of Child under R.C. 2151.413. A hearing on the permanent custody
    motion was held before a magistrate on July 14, 2011. On August 8, 2011, the
    magistrate issued a decision granting the Agency’s motion for permanent custody.
    Father filed timely objections to the magistrate’s decision. On September 8, 2011, the
    trial court entered an order requesting clarification of certain issues from the magistrate,
    and the magistrate issued her clarification decision on September 9, 2011.
    {¶7}   On September 15, 2011, the trial court issued an Entry, which
    incorporated and adopted both the magistrate’s August 8, 2011 and September 9, 2011
    decisions. The September 15, 2011 Entry terminated Mother and Father’s parental
    rights and responsibilities as to Child and granted the Agency’s motion for permanent
    custody of Child.
    Ross App. No. 11CA3289                                                          5
    {¶8}   Father appeals and asserts the following assignments of error:1 I. “THE
    TRIAL COURT ERRED BY FINDING THAT PERMANENT CUSTODY WAS IN THE
    BEST INTEREST OF THE CHILD.” II. A. “THE TRIAL COURT ERRED IN REFUSING
    TO GRANT A CONTINUANCE ON TWO (2) OCCASIONS SO THAT APPELLANT’S
    FATHER (‘GRANDFATHER’) COULD BE SERIOUSLY CONSIDERED AS A
    PLACEMENT AND/OR CUSTODIAN FOR THE MINOR CHILD.” II. B. “THE TRIAL
    COURT ERRED IN FAILING TO HOLD CHILDREN’S SERVICES IN CONTEMPT FOR
    FAILURE TO COMPLY WITH THE COURT’S ORDER TO CONDUCT A HOME STUDY
    RELATED TO GRANDFATHER.” II. C. “THE TRIAL COURT ERRED IN REFUSING
    TO PLACE THE MINOR CHILD WITH APPELLANT’S FATHER (‘GRANDFATHER’) AS
    A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. D. “THE TRIAL COURT
    ERRED IN FAILING TO FIND THAT CHILDREN’S SERVICES DID NOT MAKE
    REASONABLE EFFORTS TO INVESTIGATE APPELLANT’S FATHER
    (‘GRANDFATHER’) AS A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. E.
    “THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S FATHER
    (‘GRANDFATHER’) DID NOT SHOW ANY INTEREST IN WORKING WITH
    CHILDREN’S SERVICES.” II. F. “THE TRIAL COURT ERRED IN FINDING THAT
    APPELLANT’S FATHER (‘GRANDFATHER’) INTRODUCED ALL RELEVANT
    INFORMATION AND EVIDENCE THROUGH HIS TESTIMONY AT THE HEARING.”
    And, III. “THE FATHER M.D. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.”
    1
    We note that, in his brief, Father lists his second assignment of error as “ISSUES
    RELATED TO APPELLANT’S FATHER (‘GRANDFATHER’)”. And under that
    assignment of error, Father lists six reasons (lettered A – F) why the trial court’s
    decision should be reversed. We will list all six arguments here, and we will address
    each argument in the section below devoted to Father’s second assignment of error.
    Ross App. No. 11CA3289                                                               6
    II.
    {¶9}   In his first assignment of error, Father argues that the trial court erred by
    finding that permanent custody was in the best interest of Child.
    {¶10} A parent’s “interest in the care, custody, and control of [his or her] children
    ‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 
    113 Ohio St.3d 88
    , 
    2007-Ohio-1105
    , 
    862 N.E.2d 829
    , ¶ 8, quoting Troxel v. Granville, 
    530 U.S. 57
    , 65,
    
    120 S.Ct. 2054
    , 
    147 L.Ed.2d 49
     (2000). Further, “[p]ermanent termination of parental
    rights has been described as ‘the family law equivalent of the death penalty in a criminal
    case.’” In re D.A., 
    2007-Ohio-1105
    , ¶ 10, quoting In re Smith, 
    77 Ohio App.3d 1
    , 16,
    
    601 N.E.2d 45
     (6th Dist.1991). As such, “parents ‘must be afforded every procedural
    and substantive protection the law allows.’” In re D.A., 
    2007-Ohio-1105
    , ¶ 10, quoting
    In re Hayes, 
    79 Ohio St.3d 46
    , 48, 
    679 N.E.2d 680
     (1997). “‘[I]t is plain that the natural
    rights of a parent are not absolute, but are always subject to the ultimate welfare of the
    child, which is the polestar or controlling principle to be observed.’” In re Cunningham,
    
    59 Ohio St.2d 100
    , 106, 
    391 N.E.2d 1034
     (1979), quoting In re R.J.C., 
    300 So.2d 54
    , 58
    (Fla.App.1974).
    {¶11} “A public or private child-placement agency may file a motion under R.C.
    2151.413(A) to request permanent custody of a child after a court has committed the
    child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re
    C.F., 
    113 Ohio St.3d 73
    , 
    2007-Ohio-1104
    , 
    862 N.E.2d 816
    , ¶ 22. Once a motion is filed
    under R.C. 2151.413(A), the court must follow R.C. 2151.414. 
    Id.
    {¶12} A trial court may grant the agency’s motion for permanent custody if it
    determines by clear and convincing evidence that: (1) one of the four conditions outlined
    Ross App. No. 11CA3289                                                                7
    in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.
    2151.414(B)(1); In re McCain, 4th Dist. No. 06CA654, 
    2007-Ohio-1429
    , ¶ 13. “Clear
    and convincing evidence is the measure or degree of proof that will produce in the mind
    of the trier of fact a firm belief or conviction as to the allegations sought to be
    established.” In re Estate of Haynes, 
    25 Ohio St.3d 101
    , 104, 
    495 N.E.2d 23
     (1986).
    Thus, “[i]t is intermediate, being more than a mere preponderance, but not to the extent
    of such certainty as required beyond a reasonable doubt as in criminal cases. It does
    not mean clear and unequivocal.” 
    Id.
    {¶13} We will not reverse the judgment of the trial court in a permanent custody
    case when some competent, credible evidence supports the trial court’s findings. In re
    Marano, 4th Dist. No. 04CA30, 
    2004-Ohio-6826
    , ¶ 12. “We give the trial court’s final
    determination ‘the utmost respect, given the nature of the proceeding and the impact
    the court’s determination will have on the lives of the parties concerned.’” 
    Id.,
     quoting In
    re Alfrey, 2d Dist. No. 01CA0083, 
    2003-Ohio-608
    , ¶ 102.
    {¶14} Accordingly, we must determine if competent, credible evidence supports
    the trial court’s findings regarding both the best interest of the child and the
    requirements of R.C. 2151.414(B)(1)(a)-(d). In re D.N., 4th Dist. No. 11CA3213, 2011-
    Ohio-3395, ¶ 17.
    A.
    {¶15} First, we must address whether Father has waived any arguments under
    his first assignment of error. “The juvenile rules require written objections to a
    magistrate's decision to be filed within 14 days of the decision.” In re D.S., 12th Dist.
    Nos. CA2010-08-058, CA2010-08-064, & CA2010-08-065, 
    2011-Ohio-1279
    , ¶ 31, citing
    Ross App. No. 11CA3289                                                                 8
    Juv.R. 40(D)(3)(b)(i). Under Juv.R. 40(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a
    party shall not assign as error on appeal the court’s adoption of any factual finding or
    legal conclusion, whether or not specifically designated as a finding of fact or conclusion
    of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or
    conclusion as required by Juv.R. 40(D)(3)(b).” This “embodies the long-recognized
    principle that the failure to draw the trial court’s attention to possible error when the error
    could have been corrected results in a waiver of the issue for purposes of appeal.” In re
    D.S., 
    2011-Ohio-1279
    , ¶ 31, citing In re Etter, 
    134 Ohio App.3d 484
    , 492, 
    731 N.E.2d 694
     (1st Dist.1998). Objections under Juv.R. 40(D)(3)(b)(i) “must be ‘specific’ and must
    ‘state with particularity all grounds for objection.’” In re D.S., 
    2011-Ohio-1279
    , ¶ 31,
    quoting Juv.R. 40(D)(3)(b)(ii). The “[f]ailure to file specific objections is treated the
    same as the failure to file any objections.” In re D.R., 12th Dist. No. CA2009-01-018,
    
    2009-Ohio-2805
    , ¶ 29. See also In re D.N., 
    2011-Ohio-3395
    , ¶ 18.
    {¶16} In challenging the trial court’s determination that permanent custody is in
    Child’s best interest, Father argues that the trial court erred in finding that “[Child]
    cannot and should not be reunited with either parent.” Sept. 15, 2011 Entry (adopting
    and incorporating Magistrate’s Aug. 8, 2011 Decision). Father did not specifically object
    to this finding before the trial court. Consequently, we review this particular argument
    under a plain error standard.
    {¶17} “In appeals of civil cases, the plain error doctrine is not favored and may
    be applied only in the extremely rare case involving exceptional circumstances where
    error, to which no objection was made at the trial court, seriously affects the basic
    fairness, integrity, or public reputation of the judicial process, thereby challenging the
    Ross App. No. 11CA3289                                                              9
    legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 
    79 Ohio St.3d 116
    , 
    679 N.E.2d 1099
     (1997), syllabus.
    {¶18} We conclude that the trial court did not err, much less commit plain error,
    in finding that Child cannot and should not be reunited with either parent. Initially, we
    note that the determination of whether a child cannot or should not be reunited with
    either parent is not part of the best-interest-of-the-child analysis in a permanent custody
    case. As indicated above, under R.C. 2151.414(B)(1), a trial court may grant the
    agency’s motion for permanent custody if it determines by clear and convincing
    evidence that: (1) one of the four conditions outlined in R.C. 2151.414(B)(1)(a)-(d)
    applies; and (2) it is in the child’s best interest.
    {¶19} Specifically, R.C. 2151.414(B)(1)(a)-(d) provides as follows:
    Except as provided in division (B)(2) of this section, the court may grant
    permanent custody of a child to a movant if the court determines at the
    hearing held pursuant to division (A) of this section, by clear and
    convincing evidence, that it is in the best interest of the child to grant
    permanent custody of the child to the agency that filed the motion for
    permanent custody and that any of the following apply:
    (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
    Ross App. No. 11CA3289                                                               10
    described in [R.C. 2151.413(D)(1)], the child was previously in the
    temporary custody of an 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 twenty-two-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 [R.C.
    2151.413(D)(1)], the child was previously in the temporary custody of an
    equivalent agency in another state. (Emphasis added.)
    {¶20} Here, R.C. 2151.414(B)(1)(a) applies, and the determination of whether
    Child cannot or should not be reunited with her parents is part of that analysis (i.e., it is
    not part of the best-interest-of-the-child analysis).
    {¶21} As of July 14, 2011 hearing, Child “[was] not abandoned or orphaned,
    [had] 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 [had] not been in the temporary custody of one or more
    public children services agencies or private child placing agencies for twelve or more
    Ross App. No. 11CA3289                                                               11
    months of a consecutive twenty-two-month period if, as described in [R.C.
    2151.413(D)(1)], the child was previously in the temporary custody of an equivalent
    agency in another state.” R.C. 2151.414(B)(1)(a).
    {¶22} Furthermore, the trial court found that “[Child] cannot and should not be
    reunited with either parent.” Sept. 15, 2011 Entry (adopting and incorporating
    Magistrate’s Aug. 8, 2011 Decision).
    {¶23} The record supports the trial court’s finding that Child cannot and should
    not be reunited with either parent based on R.C. 2151.414(E). That statute enumerates
    circumstances under which a trial court must find that a child cannot be placed with
    either parent in a reasonable time or should not be placed with either parent.
    Specifically, R.C. 2151.414(E) provides, in relevant part, as follows:
    If the court determines, by clear and convincing evidence, * * * that one or
    more of the following exist as to each of the child’s parents, the court shall
    enter a finding that the child cannot be placed with either parent within a
    reasonable time or should not be placed with either parent: * * * (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; * * * (12) The parent is incarcerated at the
    time of the filing of the motion for permanent custody or the dispositional
    hearing of the child and will not be available to care for the child for at
    least eighteen months after the filing of the motion for permanent custody
    Ross App. No. 11CA3289                                                               12
    or the dispositional hearing. (Emphasis added.) R.C. 2151.414(E)(4) &
    (12).
    {¶24} Regarding Father, R.C. 2151.414(E)(12) applies. Father’s release date
    from prison is February 17, 2013, which is approximately nineteen (19) months from the
    July 14, 2011 hearing. Therefore, as of the July 14, 2011 hearing, “[Father was]
    incarcerated at the time of * * * the dispositional hearing of the child and [would] not be
    available to care for the child for at least eighteen months after * * * the dispositional
    hearing.” R.C. 2151.414(E)(12).
    {¶25} In challenging the trial court’s finding that Child cannot and should not be
    reunited with either parent, Father argues that the trial court failed to consider the
    possibility of Father obtaining judicial release from prison. Father previously applied for
    judicial release, but the trial court denied his application. However, based on the trial
    court’s statements when denying his application, Father asserts the trial court will
    “seriously consider” granting a second application once Father completes a program
    that Father has enrolled in while in prison. Appellant’s Brief at 10-11. Thus, Father
    argues that he could be out of prison within months of the hearing, and, therefore,
    reunited with Child in a reasonable time.
    {¶26} Father’s argument, however, is based on pure speculation regarding the
    action the trial court may or may not take in considering Father’s application for judicial
    release. There is no guarantee (1) that Father will complete the program he enrolled in
    or (2) that, even if he does complete the program, he will obtain judicial release from
    prison. Thus, Father cannot show that he could be or should be reunited with Child in a
    reasonable time.
    Ross App. No. 11CA3289                                                             13
    {¶27} Regarding Mother, R.C. 2151.414(E)(4) applies. Child was born addicted
    to opiates based on Mother’s drug use during her pregnancy. As a result, Child was
    adjudicated an abused child. Additionally, Mother has not maintained contact with the
    Agency regarding her efforts to rehabilitate her substance abuse problems. Mother’s
    contact with Child has been sporadic at best. As of the July 14, 2011 hearing, Mother
    did not have a known address. Furthermore, Mother did not attend the July 14, 2011
    hearing. Consequently, “[Mother] 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[.]” R.C. 2151.414(E)(4).
    {¶28} Thus, the record demonstrates that R.C. 2151.414(E)(12) applied to
    Father, and R.C. 2151.414(E)(12) applied to Mother. As a result, we conclude that the
    trial court did not err, much less commit plain error, in finding that Child cannot and
    should not be reunited with either parent. Therefore, R.C. 2151.414(B)(1)(a) of the
    permanent-custody analysis was satisfied.
    B.
    {¶29} We now turn to the remainder of Father’s argument that the trial court
    erred in finding that permanent custody was in Child’s best interest.
    {¶30} Father contends that the trial court erred because the four requirements of
    R.C. 2151.414(D)(2) cannot be satisfied. Father’s argument, however, ignores the plain
    language of the statute. R.C. 2151.414(D)(2) provides, in pertinent part, as follows: “If
    all of the following apply, permanent custody is in the best interest of the child and the
    court shall commit the child to the permanent custody of a public children services
    Ross App. No. 11CA3289                                                                  14
    agency or private child placing agency[.]” (Emphasis added.) Under the plain language
    of the statute, if the requirements of R.C. 2151.414(D)(2) are satisfied, then the trial
    court must grant the permanent custody motion. That does not mean, however, that
    permanent custody is in a child’s best interest only if the requirements of R.C.
    2151.414(D)(2) are satisfied. Thus, Father’s arguments that the trial court erred based
    on an inability to satisfy the requirements of R.C. 2151.414(D)(2) must fail.
    {¶31} Here, R.C. 2151.414(D)(1) governs the best-interest-of-the-child analysis,
    and that statute provides as follows:
    In determining the best interest of a child * * * 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 for the maturity of the child;
    (c) The custodial history of the child, including whether 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, 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 [R.C. 2151.413(D)], the
    Ross App. No. 11CA3289                                                               15
    child was previously in the temporary custody of an equivalent agency in
    another state;
    (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;
    (e) Whether any of the factors in [R.C. 2151.414(E)(7) to (11)] in relation
    to the parents and child.
    {¶32} The evidence supports the trial court’s determination that permanent
    custody is in Child’s best interest. As indicated above, Child spent the first several
    weeks of life in the hospital as she suffered from withdrawal caused by being born
    addicted to opiates. Child was then placed in the care of her foster parents, R.P. and
    T.P., and Child has been in her foster parents’ care ever since her release from the
    hospital. Child’s foster mother, T.P., testified that Child has been thriving in her foster
    parents’ home. Child’s caseworker also testified that Child was thriving while in the care
    of her foster parents. T.P. testified that Child has bonded with her entire foster family
    (i.e., T.P., R.P., Child’s foster brother, and Child’s foster grandmother). T.P. also
    testified that Child has exceeded developmental milestones while in the care of her
    foster parents. Furthermore, T.P. testified that she and R.P. own their home and are
    financially secure. Additionally, T.P. testified that she and R.P. plan on adopting Child.
    {¶33} The trial court determined that Child “[was] in need of a legally secure
    permanent placement which [could not] be obtained without a grant of permanent
    custody to the agency.” Sept. 15, 2011 Entry (adopting and incorporating Magistrate’s
    Aug. 8, 2011 Decision). The court also determined that “[t]he conditions giving rise to
    Ross App. No. 11CA3289                                                                 16
    the child’s removal have not been remedied.” Id. at 1. And although Child is too young
    to express her wishes, Child’s guardian ad litem recommended that the trial court grant
    the Agency’s motion for permanent custody of Child.
    {¶34} Additionally, Child has had little or no interaction with Mother, Father, or
    any relative of Mother or Father since birth. Father has been in prison, and the
    evidence demonstrated that, other than filling out some paperwork, Father did little to
    contact the Agency regarding Child. Mother’s involvement in Child’s life has been
    minimal. And in addition to not attending the permanent custody hearing, Mother’s
    address was not known at time of the hearing.
    {¶35} Father argues at length that the trial court should have placed Child in the
    temporary care of A.B., Child’s paternal grandfather. A.B. testified at the hearing that
    he owns his home and that he has been employed with the City of Columbus for many
    years. A.B. also testified that he was willing to care for Child. The evidence, however,
    demonstrates that A.B. had done little, if anything, to initiate contact with Child, despite
    being contacted regarding Child shortly after Child’s birth. In fact, A.B. admitted at the
    hearing that he never “went to visit [Child] or [tried] to arrange a visit with [Child.]” Tr. at
    52-53. Additionally, the trial court found that A.B. did not cooperate with the Agency’s
    attempts to investigate A.B. as a possible placement option prior to the July 14, 2011
    hearing. (We will discuss Father’s challenges to this finding in more detail under
    Father’s second assignment of error.) Moreover, the Agency investigated the possibility
    of placing Child with other relatives, but the Agency was unable to find a suitable
    placement for Child.
    Ross App. No. 11CA3289                                                             17
    {¶36} Considering the reasons stated above, there was competent credible
    evidence to support the trial court’s conclusion that granting the permanent custody
    motion was in Child’s best interest. Accordingly, we overrule Father’s first assignment
    of error.
    III.
    {¶37} In his second assignment of error, Father advances several arguments
    that the trial court erred based on “issues” relating to A.B. For ease of analysis, we will
    address Father’s arguments relating to A.B. in a different order than Father lists them in
    his Appellant’s brief.
    A.
    {¶38} We begin with Father’s argument that the trial court erred in finding that
    A.B. “did not show any interest in working with [the Agency] when contacted in October
    2010.” Magistrate’s Aug. 8, 2011 Dec. at 1. As stated above, we will uphold the trial
    court’s finding as long as some competent, credible evidence supports it. In re Marano,
    
    2004-Ohio-6826
    , ¶ 12.
    {¶39} Shortly after Child’s birth, the caseworker assigned to Child’s case
    explored relative placement for Child, and she contacted A.B. in October 2010, to obtain
    information about A.B. The caseworker testified that A.B. would not provide her with the
    information she requested. Instead, A.B. informed the caseworker that she could get
    his information from “Franklin County.” (Presumably, A.B. was referring to information
    that Franklin County Job and Family Services would have as a result of the termination
    of Mother and Father’s parental rights for their other two children in that county.) The
    caseworker also testified that, during this conversation, A.B. refused to provide either
    Ross App. No. 11CA3289                                                             18
    his date of birth or his social security number to assist the caseworker in her effort.
    Furthermore, the caseworker testified that Franklin County officials did not have any
    information on A.B.
    {¶40} A.B. claimed that he did not remember the conversation with the
    caseworker. A.B. testified that, at some point, he contacted the Agency, but he got the
    “run around.” Tr. at 45-46. A.B., however, could not name anyone at the Agency with
    whom he spoke. Additionally, when asked whether he told the caseworker that she
    could get his information from Franklin County, A.B. testified, “Maybe I did. But I don’t
    remember saying it.” Tr. at 53. The trial court determined that “[a]t best, [A.B.’s]
    testimony was confused and inconsistent, if not evasive.” Sept. 15, 2011 Entry at 2.
    {¶41} Thus, there was some competent credible evidence to support the trial
    court’s finding that A.B. “did not show any interest in working with [the Agency] when
    contacted in October 2010[.]” Consequently, we cannot conclude that the trial court
    erred when it made this finding.
    B.
    {¶42} Next, we consider Father’s arguments that the trial court erred by failing to
    find that the Agency did not make reasonable efforts to investigate A.B. as a potential
    placement for Child.
    {¶43} We recently rejected a similar argument in In re M.O., 4th Dist. No.
    10CA3189, 
    2011-Ohio-2011
    . As we observed, “a public children services agency has
    no statutory duty to make ‘reasonable efforts’ to place the child with an extended family
    member before it can obtain permanent custody of the child.” Id. at ¶ 16. See also In re
    Warren, 5th Dist. No. 2007CA00054, 
    2007-Ohio-5703
    , ¶ 23 (“[T]he Department’s duty
    Ross App. No. 11CA3289                                                             19
    to use reasonable efforts applies only to efforts to avoid removal of a child from her
    home or to reunify the child with her family, following removal. The Department is under
    no statutory duty to make reasonable efforts to place a child with relatives although
    relative placement is to be investigated.”); In re D.N., 
    2011-Ohio-3395
    , ¶ 24.
    {¶44} We also note that the trial court determined that the Agency did make
    reasonable efforts to place Child with a relative. As indicated above, the Agency
    attempted to contact A.B. to investigate potentially placing Child with him, but A.B. was
    not cooperative. Additionally, the caseworker was unable to obtain information
    regarding A.B. from Franklin County officials, despite A.B.’s assertion that the Agency
    could obtain information about him from “Franklin County.” The evidence also shows
    that the Agency contacted one of Child’s aunts. The aunt was initially cooperative, but
    then she cancelled a scheduled home visit due to illness. And the Agency was unable
    to reschedule the visit. Additionally, the record indicates that the Agency investigated
    placing Child with her maternal grandmother. Child’s maternal grandmother, however,
    ultimately decided that she did not want Child placed in her care. Thus, there was
    competent, credible evidence supporting the trial court’s finding that the Agency “made
    reasonable efforts” to place Child with a relative. Accordingly, Father’s argument that
    the trial court erred in failing to find that the Agency did not make reasonable efforts to
    investigate A.B. as a potential placement for Child lacks merit.
    C.
    {¶45} Father also argues that the trial court erred by not placing Child with A.B.
    Father’s argument, however, misstates the nature of the proceeding before the trial
    Ross App. No. 11CA3289                                                             20
    court. After Child was adjudicated an abused child as a result of being born addicted to
    opiates, the Agency moved for permanent custody of Child under R.C. 2151.413.
    {¶46} As discussed in Father’s first assignment of error, the trial court could
    grant the Agency’s motion for permanent custody under R.C. 2151.414(B)(1) if it
    determined by clear and convincing evidence that: (1) one of the four conditions
    outlined in R.C. 2151.414(B)(1)(a)-(d) applied; and (2) it was in the child’s best interest.
    See R.C. 2151.414(B)(1); In re McCain, 
    2007-Ohio-1429
    , ¶ 13. And as detailed above,
    there was competent, credible evidence demonstrating that R.C. 2151.414(B)(1)(a)
    applied and that permanent custody was in Child’s best interest. Thus, Father’s
    argument that the trial court erred by not placing Child with A.B. is not applicable to the
    issues the trial court had to determine at the July 14, 2011 hearing. As we concluded
    above, the trial court did not err in granting the Agency’s motion for permanent custody
    of Child. Accordingly, Father’s argument that the trial court erred by not placing Child
    with A.B. lacks merit.
    D.
    {¶47} Father contends that the trial court erred in finding that A.B. introduced all
    relevant information and evidence through his testimony at the July 14, 2011 hearing.
    At the hearing, A.B. testified regarding his desire to have Child placed in his care. A.B.
    also testified about his living and financial circumstances. Father argues that additional
    information would be available had the Agency conducted its home investigation of A.B.
    On appeal, however, Father does not indicate what additional information could have
    been obtained at the hearing had the Agency conducted a home investigation of A.B.
    Ross App. No. 11CA3289                                                                 21
    Consequently, we cannot conclude that the trial erred in finding that A.B. introduced all
    relevant information and evidence when he testified at the July 14, 2011 hearing.
    E.
    {¶48} Father contends that the trial court erred in refusing to grant a continuance
    on two occasions so that A.B.’s home could be considered as a placement option for
    Child.
    {¶49} We review a trial court’s decision regarding whether or not to grant a
    motion for a continuance under an abuse of discretion standard. Labonte v. Labonte,
    4th Dist. No. 07CA15, 
    2008-Ohio-5086
    , ¶ 9. “The term ‘abuse of discretion’ connotes
    more than an error of law or judgment; it implies that the court’s attitude is
    unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983), quoting State v. Adams, 
    62 Ohio St.2d 151
    , 157,
    
    404 N.E.2d 144
     (1980). “[W]hen applying the abuse of discretion standard, we may not
    substitute our judgment for that of the trial court.” Labonte at ¶ 9, citing Berk v.
    Matthews, 
    53 Ohio St.3d 161
    , 169, 
    559 N.E.2d 1301
     (1993).
    {¶50} “Our review of a denial of a motion for a continuance requires us to ‘apply
    a balancing test, thereby weighing the trial court’s interest in controlling its own docket,
    including the efficient dispensation of justice, versus the potential prejudice to the
    moving party.’” Foley v. Foley, 10th Dist. Nos. 05AP-242 & 05AP-463, 
    2006-Ohio-946
    ,
    ¶ 16, quoting Fiocca v. Fiocca, 10th Dist. No. 04AP-962, 
    2005-Ohio-2199
    , ¶ 7.
    {¶51} “In evaluating a motion for a continuance, a court should note, inter alia:
    the length of the delay requested; whether other continuances have been requested
    and received; the inconvenience to litigants, witnesses, opposing counsel and the court;
    Ross App. No. 11CA3289                                                             22
    whether the requested delay is for legitimate reasons or whether it is dilatory,
    purposeful, or contrived; whether the defendant contributed to the circumstance which
    gives rise to the request for a continuance; and other relevant factors, depending on the
    unique facts of each case.” State v. Unger, 
    67 Ohio St.2d 65
    , 67-68, 
    423 N.E.2d 1078
    (1981). Although Unger was a criminal matter, appellate courts have also applied these
    factors in civil cases. See, e.g., King v. Kelly, 4th Dist. No. 02CA42, 
    2003-Ohio-4412
    , ¶
    11; Henson v. Highland Dist. Hosp., 
    143 Ohio App.3d 699
    , 707, fn. 4, 
    758 N.E.2d 1166
    (4th Dist.2001); Integrated Payment Systems, Inc. v. A & M 87th Inc., 8th Dist. Nos.
    91454 & 91473, 
    2009-Ohio-2715
    , ¶ 73; Truex v. Truex, 
    179 Ohio App.3d 188
    , 2008-
    Ohio-5690, 
    901 N.E.2d 259
     (5th Dist.) ¶ 15.
    {¶52} On July 7, 2011, Father moved to continue the July 14, 2011 hearing so
    that the Agency could investigate A.B. as a possible placement option. The magistrate
    denied this motion, but she ordered the Agency to investigate A.B. as a placement
    option. The record indicates that the investigation was not completed prior to the July
    14, 2011 hearing. At the beginning of the July 14, 2011 hearing, Father moved for a
    continuance. However, Father’s stated reason for requesting the continuance did not
    pertain to the Agency investigating A.B. as a placement option. Instead, Father sought
    a continuance so that A.B. could file a motion for legal custody of Child. The magistrate
    denied this continuance as well.
    {¶53} As the trial court noted, the magistrate was not aware of the Agency’s
    earlier attempts to investigate A.B. when she ordered the investigation on July 7, 2011.
    Additionally, the trial court found that A.B. was not cooperative when the Agency
    contacted him to investigate him as a placement option for Child shortly after Child’s
    Ross App. No. 11CA3289                                                            23
    birth. Considering these facts, an additional continuance so that the Agency could
    investigate A.B., who did not cooperate with the Agency in the first place, was
    unwarranted. Moreover, the trial court determined that A.B. testified at the July 14,
    2011 hearing and provided information that the Agency would discover through any
    potential investigation. And Father has not articulated what additional information could
    have been introduced at the hearing had the Agency conducted the home investigation.
    Therefore, Father did not suffer any prejudice from the denial of the continuance.
    {¶54} Thus, we conclude that the trial court did not abuse its discretion when it
    denied Father’s motions for a continuance.
    F.
    {¶55} Father also argues that the trial court erred by failing to hold the Agency in
    contempt for disobeying the court’s order that the Agency conduct a home investigation
    of A.B. as a potential placement option for Child. Although Father did not move to hold
    the Agency in contempt before the trial court, Father argues that the trial court should
    have sua sponte held the Agency in contempt.
    {¶56} Because Father could have argued to the trial court that the Agency
    should be held in contempt, but he chose not to, we review his argument under a plain
    error standard. See Rocky v. Rockey, 4th Dist. No. 08CA4, 
    2008-Ohio-6525
    , ¶ 37,
    quoting Sprouse v. Miller, 4th Dist. No. 07CA32, 
    2008-Ohio-4284
    , ¶ 11 (“It is a cardinal
    rule of appellate procedure that ‘an appellate court will not consider any error which
    could have been brought to the trial court’s attention, and hence avoided or otherwise
    corrected.’”).
    Ross App. No. 11CA3289                                                               24
    {¶57} We conclude that the trial court did not commit plain error by failing to hold
    the Agency in contempt. As indicated above, the magistrate was not aware of the
    Agency’s previous efforts to investigate A.B. as a placement option, and the trial court
    found that A.B. did not cooperate with the Agency when it contacted him shortly after
    Child’s birth. This implies that, had the magistrate been aware of these facts, she would
    not have issued the July 7, 2011 order to investigate A.B. in the first place. Additionally,
    the trial court determined that the Agency used reasonable efforts to investigate A.B. (in
    addition to other members of Child’s extended family). Finally, the trial court determined
    that A.B. provided the information that the Agency would discover through any potential
    investigation when A.B. testified at the July 14, 2011 hearing. Therefore, Father
    suffered no prejudice as a result of the Agency’s failure to investigate A.B. as a
    placement prior to the hearing. Consequently, the trial court’s failure to find the Agency
    in contempt for not investigating A.B. as a placement option does not amount to plain
    error.
    G.
    {¶58} For all the above reasons, we conclude Father’s arguments regarding
    “issues” related to A.B. lack merit. Consequently, we overrule Father’s second
    assignment of error.
    IV.
    {¶59} In his third assignment of error, Father contends that he suffered from
    ineffective assistance of counsel.
    {¶60} “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
    Ross App. No. 11CA3289                                                               25
    counsel.” In re A.C.H., 4th Dist. No. 11CA2, 
    2011-Ohio-5595
    , ¶ 50, citing In re Wingo,
    
    143 Ohio App.3d 652
    , 666, 
    758 N.E.2d 780
     (4th Dist.2001), in turn citing In re Heston,
    
    129 Ohio App.3d 825
    , 827, 
    719 N.E.2d 93
     (1st Dist.1998). “‘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 at 666, quoting Heston at 827.
    {¶61} “To reverse a trial court’s judgment based upon a claim of ineffective
    assistance, the [appellant] must show, first, that counsel’s performance was deficient
    and, second, that the deficient performance prejudiced the defense so as to deprive the
    [appellant] of a fair trial.” In re A.C.H., 
    2011-Ohio-5595
    , ¶ 51, citing Strickland v.
    Washington, 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984); State v. Noling,
    
    98 Ohio St.3d 44
    , 
    2002-Ohio-7044
    , 
    781 N.E.2d 88
    , ¶ 108; State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989). “Failure to satisfy either prong is fatal as the
    [appellant’s] burden requires proof of both elements.” State v. Hankison, 4th Dist. No.
    09CA3326, 
    2010-Ohio-4617
    , ¶ 104, quoting State v. Hall, 4th Dist. No. 07CA837, 2007-
    Ohio-6091, ¶ 11.
    {¶62} In its September 15, 2011 Entry, the trial court stated, “[Father’s trial
    counsel] did not raise the issue of [the Agency’s] failure to take any action [regarding
    investigating A.B. as a placement option for Child] after the July 7, 2011 order or make
    any objections or request for continuance based on that issue.” September 15, 2011
    Entry at 2. At the July 14, 2011 hearing, Father’s trial counsel sought a continuance so
    that A.B. could move for custody of Child. Father’s trial counsel did not, however, raise
    Ross App. No. 11CA3289                                                             26
    the issue of the Agency’s investigation of A.B. as a placement option for Child.
    Consequently, Father argues that he suffered from ineffective assistance of counsel
    based on his trial counsel’s failure to raise the investigation issue.
    {¶63} Even assuming trial counsel’s failure to raise the investigation issue after
    the July 7, 2011 order constituted deficient performance, Father cannot demonstrate the
    prejudice necessary to prevail on an ineffective assistance of counsel claim. As noted
    above, the magistrate was unaware of the Agency’s previous attempt to investigate A.B.
    when she issued the July 7, 2011 order. This indicates that the magistrate would not
    have ordered the investigation on July 7, 2011 had she been aware of the Agency’s
    previous attempt to investigate A.B. Moreover, the trial court determined that A.B.
    presented all relevant information through his testimony at the July 14, 2011 hearing.
    And finally, Father has not indicated what additional information the Agency could have
    obtained had it conducted a home investigation of A.B. prior to the July 14, 2011
    hearing. As a result, Father was not prejudiced by his trial counsel’s failure to raise the
    investigation issue after July 7, 2011. Consequently, Father’s ineffective assistance
    claim must fail.
    {¶64} Accordingly, we overrule Father’s third assignment of error.
    V.
    {¶65} Having overruled all of Father’s assignments of error, we affirm the
    judgment of the trial court.
    JUDGMENT AFFIRMED.
    Ross App. No. 11CA3289                                                           27
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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
    Ross County Court of Common Pleas, 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. Exceptions.
    Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.
    For the Court
    BY:_____________________________
    Roger L. Kline, 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.