In re L.J. W. , 2016 Ohio 7054 ( 2016 )

[Cite as In re L.J. W., 2016-Ohio-7054.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. Sheila G. Farmer, P. J.
Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
L. J. W.
Case No. 16 COA 013A DEPENDENT CHILD
OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Juvenile Division, Case No. 2014
0207
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 28, 2016
APPEARANCES:
For Appellant-Mother For Appellee ACDJFS
KAREN DESANTO-KELLOGG CHRISTOPHER R. TUNNELL
432 Center Street PROSECUTING ATTORNEY
Ashland, Ohio 44805 EMILY M. BATES
ASSISTANT PROSECUTOR
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 16 COA 013 2
Wise, J.
{¶1} Appellant-Mother Chelsea Fown Hoos appeals the decision of the Ashland
County Court of Common Pleas, Juvenile Division, which granted a dispositional order of
legal custody of appellant’s son to the child’s paternal grandmother. The relevant facts
leading to this appeal are as follows:
{¶2} The child at the center of this case is L.J.W., born in 2007 to appellant and
Geremy Woods. On August 4, 2014, as a result of a dependency complaint, L.J.W. was
ordered into the shelter care of the Ashland County Department of Job and Family
Services, Children Services Division ("ACDJFS"). Included in the agency’s complaint
were concerns about caregiver drug use.
{¶3} On December 3, 2014, following L.J.W.’s adjudication as a dependent child,
the case proceeded to disposition. At the time of said dispositional hearing, both parents
were facing indictments for felony drug charges. The trial court, via a judgment entry
issued February 13, 2015, proceeded to maintain the child in the temporary custody of
ACDJFS.1
{¶4} In July and August 2015, appellant-mother filed several pleadings
requesting custody of L.J.W. However, on August 25, 2015, ACDJFS requested via
written motion that the trial court modify its prior disposition and grant legal custody of the
child to his paternal grandmother, Valerie Woods. On the same day, ACDJFS filed a
motion for contempt of court against appellant. An evidentiary hearing on the various
motions took place on January 8, 2016. Appellant did not appear. Appellant's trial attorney
1 We surmise that these proceedings were under a different trial court case number, as
the trial court filings before us did not commence until July 9, 2015.
Ashland County, Case No. 16 COA 013 3
advised the court that appellant was aware of her obligation to come to the hearing, but
that she would not be attending. See Tr. at 5-7. However, appellant’s trial attorney did not
request a continuance on the record. See Tr. at 7-8.
{¶5} Although the trial court considered issuing a warrant for appellant's arrest,
that issue was apparently taken under advisement, and the court then went forward with
the hearing. See Tr. at 5-8. Among other things, the agency’s ongoing caseworker,
Jennifer Boerwinkle, testified that L.J.W. had been placed with his paternal grandmother,
Valerie Woods, since initial agency involvement in July 2014. Tr. at 10. The caseworker
also testified that the child was “well bonded” with Ms. Woods, and that his needs were
met at Ms. Woods' home. Tr. at 15. Furthermore, Ms. Woods testified that she had taken
foster parenting classes in an attempt to become a licensed foster parent. Tr. at 82.
{¶6} On February 3, 2016, after taking the matter under advisement, the trial
court issued a fifteen-page judgment entry awarding legal custody of L.J.W. to Ms.
Woods, with accompanying orders addressing parenting time, child support, and other
matters.
{¶7} Appellant filed a notice of appeal on February 8, 2016. She herein raises
the following sole Assignment of Error:
{¶8} “I. APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED AS A
RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
I.
{¶9} In her sole Assignment of Error, appellant contends she received ineffective
assistance of trial counsel during the proceedings leading to the trial court’s decision to
award legal custody of L.J.W. to his paternal grandmother.
Ashland County, Case No. 16 COA 013 4
{¶10} A parent has a fundamental liberty interest in the care, custody, and
management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas
No. 06AP060034, 2006-Ohio-5676, 2006 WL 3071339, ¶ 28, citing Santosky v. Kramer
(1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. In Ohio, the statutorily
permissible dispositional alternatives in a dependency, neglect, or abuse case are
enumerated in R.C. 2151.353(A). See, e.g., In re S.Y., 5th Dist. Tuscarawas No.
2011AP040018, 2011–Ohio–4621, ¶ 31. In particular, R.C. 2151.353(A)(3) provides: “If a
child is adjudicated an abused, neglected, or dependent child, the court may make any
of the following orders of disposition: * * * Award legal custody of the child to either parent
or to any other person who, prior to the dispositional hearing, files a motion requesting
legal custody of the child or is identified as a proposed legal custodian in a complaint or
motion filed prior to the dispositional hearing by any party to the proceedings. ***.”
{¶11} In comparison, the disposition of committing an abused, neglected, or
dependent child to the permanent custody of a public children services agency or private
child placing agency is addressed in R.C. 2151.353(A)(4). Thus, legal custody and
permanent custody in this context are alternative dispositional choices. See In re Fell, 5th
Dist. Guernsey No. 2004-CA-39, 2005-Ohio-2415, ¶ 17.
{¶12} This Court has recognized “ineffective assistance” claims in permanent
custody appeals. See, e.g., In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003–
Ohio–4576. However, we have not expanded the doctrine of ineffective assistance of
counsel beyond criminal cases and those involving permanent custody. See In re
Logwood, 5th Dist. Guernsey No. 2004–CA–38, 2005–Ohio–3639, ¶ 26. The matter
before us did not result in an order of permanent custody to ACDJFS. See, also, R.C.
Ashland County, Case No. 16 COA 013 5
2151.011(B)(32). We therefore will not further address appellant's sole Assignment of
Error. Accord In re W.A., 5th Dist. Muskingum No. CT2013-0002, 2013-Ohio-3444, ¶¶ 31-
33.
{¶13} For the reasons stated in the foregoing opinion, the decision of the Court of
Common Pleas, Juvenile Division, Ashland County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Hoffman, J., concur.
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