In re S.W. , 2019 Ohio 2068 ( 2019 )

[Cite as In re S.W., 2019-Ohio-2068.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
IN RE: CASE NO. 9-18-29
S.W.,
[CATHERINE WISE - APPELLANT] OPINION
IN RE: CASE NO. 9-18-30
J.W.,
[CATHERINE WISE - APPELLANT] OPINION
Appeals from Marion County Common Pleas Court
Family Division
Trial Court Nos. 2017 AB 0069 and 2017 AB 0068
Judgments Affirmed
Date of Decision: May 28, 2019
APPEARANCES:
Robert C. Nemo for Appellant
Justin J. Kahle for Appellee
Case Nos. 9-18-29 and 9-18-30
WILLAMOWSKI, J.
{¶1} Mother-appellant Catherine Wise (“Wise”) appeals the judgments of
the Family Division of the Marion County Court of Common Pleas, challenging the
trial court’s decision to award Marion County Children Services (“MCCS”) with
permanent custody of JW and SW. For the reasons set forth below, the judgments
of the trial court are affirmed.
Facts and Procedural History
{¶2} Wise is the mother of two boys: JW and SW. Tr. 279. JW’s father is
Jeremiah Hamon (“Hamon”), but SW’s paternity has not been established. Doc.
A1, B1.1 Tr. 153. MCCS initially filed a complaint on April 6, 2015. Doc. A51,
B50. At this time, Hamon and Wise tested positive for THC. Doc. A51, B50. Tr.
196. Wise had allegedly been blowing marijuana smoke into JW’s face. Tr. 196.
For this reason, JW was examined and tested positive for THC at the age of two and
a half. Doc. A51, B50. Tr. 196. Another issue was the condition of Wise’s home,
which had animal feces on the floor and several unsafe conditions. Tr. 155, 187.
On July 15, 2015, SW and JW were adjudicated dependent and were given a kinship
placement with Patricia Morris (“Morris”). Tr. 154. The children remained with
Morris until she passed away on January 6, 2017. Doc. A51, B50. Tr. 156.
1
Since there are two cases in this appeal, the documents from the docket of case 17-AB-68, In re JW, will
be identified by placing the letter “A” in front of a document’s docket number. The documents from the
docket of case 17-AB-69, In re SW, will be identified by placing the letter “B” in front of a document’s
docket number.
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{¶3} At this point, JW and SW went into the custody of MCCS. Tr. 156. On
January 9, 2017, MCCS placed the children into the care of foster parents Brittany
and Tyler Holten (collectively “the Holtens”). Tr. 156. On April 6, 2017, this case
was dismissed and refiled. Doc. A1, B1. Tr. 193. On May 10, 2017, the trial court
issued an order for temporary custody of JW and SW to remain with MCCS. Doc.
A5, B6. JW and SW were adjudicated dependent on June 12, 2017. Doc. A7, B8.
On July 5, 2018, MCCS filed a motion for permanent custody for SW and JW. Doc.
A29, B30.
{¶4} By July of 2018, SW had been continuously in the care of the Holtens
since January of 2017. Tr. 219. JW had been in the care of the Holtens since January
of 2017 with the exception of two weeks in the fall of 2017 when he returned to the
custody of MCCS. Tr. 219-220. JW’s father, Jeremiah Hamon (“Hamon”) was
incarcerated at the time that the motion for permanent custody was filed. Doc. 21.
Since Hamon was incarcerated, the assistant prosecutor for MCCS filed a motion
that requested approval from the trial court to serve the notice of hearing on Hamon
at the Madison Correctional Institution by certified mail pursuant to R.C. 2151.29.
Doc. 31. The trial court granted this motion for “good cause shown.” Doc. 34. The
notice of hearing was then sent by certified mail to Hamon at the Madison
Correctional Institution. Doc. 35.
{¶5} On July 24, 2018, the trial court held the permanent custody hearing.
Tr. 28. At this hearing, Sarah Fitzgerald (“Fitzgerald”), who works as a caseworker
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at MCCS, testified about the case plan that was put together for Wise. Tr. 220. The
main concerns of MCCS were that Wise had been unable to remain self-sufficient
and had not maintained suitable housing for an extended period of time. Tr. 229,
232. Fitzgerald mentioned that Wise was able to maintain an income through social
security benefits in between December of 2017 and May of 2018. Tr. 232.
However, Fitzgerald stated that Wise’s current living situation did not provide an
acceptable environment for children. Tr. 232.
{¶6} Fitzgerald testified that Wise had moved into the home of a friend,
Bryan Poe (“Poe”). Tr. 231-233. She stated that Wise then sought section eight
housing in September or October of 2017 but, after her application had been denied,
decided to pay to have Poe’s house remodeled in order to make his residence
suitable for children. Tr. 233, 269. Fitzgerald went into the house in June of 2018
and found that there were numerous unsafe conditions in the house. Tr. 233.
Fitzgerald testified that the subfloor was exposed; there was exposed wiring; the
rooms were cluttered; there was a lack of furniture; there were cleaning supplies
sitting out; there were cat feces strewn around a litter box; there was broken drywall
in some rooms and unfinished drywall in other rooms. Tr. 241-242, 244.
{¶7} Justin Plummer (“Plummer”), who works as a therapist for Ohio
GuideStone, testified that he worked with JW and with Wise. Tr. 52, 59. He stated
that JW initially had some compliance issues, tantrums, and disturbed sleep. Tr. 49-
50. Plummer said that JW’s behaviors improved through the course of therapy,
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though there were periods of regression. Tr. 50, 53. He testified that the Holtens
were helping to reinforce his work through their parenting style. Tr. 57. Brittany
Holten then testified about JW’s behavior since he had been placed in their home
and said that she and her husband would be willing to adopt JW and SW. Tr. 117,
127.
{¶8} Jackie Hamilton (“Hamilton”), who is employed as a caseworker for
MCCS, worked with Wise and tried to assist her in achieving the goals of Wise’s
case plan. Tr. 153, 158. Hamilton stated that Wise was “hit and miss” with the
tasks she was supposed to be completing for her case plan. Tr. 160. Wise had
completed some assessments, but failed to keep appointments, did not complete
other tasks, and did not follow through with counseling. Tr. 160, 188. Hamilton
also stated that Wise struggled to pay bills and, on at least one occasion, admitted
to relapsing into marijuana usage. Tr. 176, 185. Hamilton also testified that Wise
stopped cooperating with MCCS in between January and May of 2016 and that she
had no contact with Wise during this time. Tr. 195-196. During this time, Wise’s
living situation had improved to the point that the housing issues were marked as
resolved, but Hamilton testified that Wise regressed within a couple of months. Tr.
187-188, 199. Hamilton also stated that Wise did not attend visitation consistently
while she was working with Wise. Tr. 192.
{¶9} Wise testified that she had been living with a friend, Bryan Poe (“Poe”),
for roughly two years, though she stated that she had been in a homeless shelter for
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a brief time within this period. Tr. 291. She admitted that she was not permitted
to stay at the homeless shelter and that her applications for apartments had been
denied. Tr. 285. She testified that she had been paying to renovate Poe’s home,
though she did not have an ownership interest in the residence at that time. Tr. 302-
303. She claimed that the renovations on Poe’s house would be done by the end of
the month. Tr. 286. She also testified that she had not used marijuana in two years
and four months. Tr. 296.
{¶10} On September 13, 2018, the trial court ordered that JW and SW be
placed in the permanent custody of MCCS. Doc. A51. Wise filed her notice of
appeal on October 1, 2018. Doc. A60. On appeal, she raises the following five
assignments of error:
First Assignment of Error
The trial court lacked jurisdiction due to failure to properly serve
[JW]’s father with notice of the permanent custody hearing.
Second Assignment of Error
The trial court committed prejudicial error when it found that
appellant’s children had been in temporary custody of appellee
for twelve or more months of a consecutive twenty-two month
period pursuant to R.C. 2151.414(B).
Third Assignment of Error
The trial court committed prejudicial error by finding that it was
in the best interest of the children to be placed in the permanent
custody of appellee.
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Fourth Assignment of Error
The trial court committed prejudicial error in finding that
appellant failed continuously and repeatedly to substantially
remedy the problems that caused the condition resulting in the
children remaining in appellee’s custody and that appellant failed
to work with appellee to achieve the goals and objectives of the
case plan.
Fifth Assignment of Error
The appellant was denied her right to effective assistance of
counsel, who failed to object on multiple occasions to hearsay
evidence.
First Assignment of Error
{¶11} Appellant argues that the trial court did not have jurisdiction over this
matter because JW’s father, Hamon, was not properly served.
Legal Standard
{¶12} After a motion for permanent custody has been filed, the trial court is
to “schedule a hearing and give notice of the filing of the motion and of the hearing,
in accordance with section 2151.29 of the Revised Code, to all parties to the action
and to the child’s guardian ad litem.” R.C. 2151.414(A)(1). R.C. 2151.29 reads, in
its relevant part, as follows:
Service of summons, notices, and subpoenas * * * shall be made
by delivering a copy to the person summoned, notified, or
subpoenaed, or by leaving a copy at the person’s usual place of
residence. If the juvenile judge is satisfied that such service is
impracticable, the juvenile judge may order service by registered
or certified mail.
R.C. 2151.29.
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The notice requirement of R.C. 2151.414(A) ensures that the
juvenile court has personal jurisdiction over the parents. In re
Kincaid, 4th Dist. No. 00CA3, 2000 WL 1683456, *4 (Oct. 27,
2000). Unlike subject matter jurisdiction, the issue of personal
jurisdiction is forfeited without timely objection. In re J.P., 9th
Dist. No. 23937, 2008-Ohio-2157, ¶ 7. Whether the alleged fathers
were properly served, therefore, raises an issue of personal,
rather than subject matter jurisdiction. See In re M.M., 8th Dist.
No. 79947, 2002 WL 207610, *5 (Feb. 7, 2002). Ordinarily such
an issue would be personal to them, and Mother may not raise it.
See id.In re A.M., 9th Dist. Summit No. 26141, 2012-Ohio-1024, ¶ 13.
{¶13} In Ohio, “an appeal lies only on behalf of a party aggrieved.” In re
Guardianship of Love, 19 Ohio St.2d 111, 113, 249 N.E.2d 794, 795 (1969). An
appellant
“must be able to show that he has a present interest in the subject
matter of the litigation and that he has been prejudiced by the
judgment of the lower court.” One may not challenge an alleged
error committed against a non-appealing party absent a showing
that the challenger has been prejudiced by the alleged error.
In re Sherman, 3d Dist. Hancock Nos. 5-06-21, 5-06-22, and 5-06-23, 2006-Ohio-
6485, ¶ 8, quoting In re D.H., 8th Dist. Cuyahoga No. 82533, 2003-Ohio-6478, ¶ 7,
quoting In re Guardianship of Love at 113.
{¶14} Thus, “an appellant-mother may challenge an alleged service error
regarding a non-appealing party only when she has demonstrated that she herself
has been prejudiced by the alleged error.” Matter of G.C.J., 11th Dist. Portage Nos.
2018-P-0071, 2018-P-0072, 2018-P-0074, and 2018-P-0075, 2019-Ohio-185, ¶ 33.
If the appellant fails to demonstrate she was “actually prejudiced,” “a mere assertion
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that a purported father was not properly served is an insufficient basis upon which
to award standing to the appellant-mother to raise such error.” In re A.M., 2012-
Ohio-1024, at ¶ 18, citing In re L.A., 9th Dist. Summit No. 21531, 2003-Ohio-4790,
¶ 56.
Legal Analysis
{¶15} In this case, Wise does not allege that she did not receive proper notice
of hearing. Rather, she argues that Hamon, who is not a party to this appeal,
received defective notice. If Wise believed that Hamon’s receipt of proper notice
“was necessary to avoid prejudice to her parental rights, she could have proffered
her position at the hearing.” Matter of G.C.J., ¶ 34. However, she did not raise this
issue before the trial court. Further, on appeal, Wise has not demonstrated how she
was prejudiced by the alleged failure of the trial court to ensure that Hamon was
properly served with notice of hearing. See In re Villa, 3d Dist. Marion No. 9-01-
21, 2001 WL 1300763, *3 (Oct. 26, 2001). Thus, she does not have standing to
challenge whether Hamon received proper notice. Id. We, therefore, decline to
reach the issue of whether Hamon was properly served with notice. Matter of Cook,
3d Dist. Hancock No. 5-98-16, 1998 WL 719524, *6 (Oct. 8, 1998). For these
reasons, Wise’s first assignment of error is overruled.
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Second Assignment of Error
{¶16} Wise claims that the trial court did not follow R.C. 2151.414(B)(1)(d)
in the process of making an award of permanent custody. The legal standard set
forth below will govern the second, third, and fourth assignments of error.
Legal Standard
{¶17} “The United States Supreme Court has stated that the right to raise
one’s children is an ‘essential’ and ‘basic civil right.’” In re Murray, 52 Ohio St.3d
155, 157, 556 N.E.2d 1169 (1990), citing Meyer v. Nebraska, 262 U.S. 390, 399, 43
S.Ct. 625, 626, 67 L.Ed. 1042 (1923). “Parents have a ‘fundamental liberty interest’
in the care, custody, and management of the child.” Id., citing Santosky v. Kramer,
455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). However, “it 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).
{¶18} “R.C. 2151.413 permits an agency that has been granted temporary
custody of a child who is not abandoned or orphaned to move for permanent
custody.” In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54,
2003-Ohio-1269, ¶ 8. “When considering a motion for permanent custody of a
child, the trial court must comply with the statutory requirements set forth in R.C.
2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13. R.C.
2151.414(B)(1) reads, in its relevant part, as follows:
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(B)(1) 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
described in division (D)(1) of section 2151.413 of the Revised
Code, 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.
***
(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 * * *.
R.C. 2151.414(B)(1). Thus,
[b]ased on the statute, there are two steps to the analysis in
determining a permanent custody motion. First a court must
determine which, if any, of the factors in R.C. 2151.414(B)(1) are
present. Second, if one of the factors in R.C. 2151.414(B)(1) is
present, the court must determine if granting permanent custody
to the agency is in the children’s best interests.
In re I.G., 3d Dist. Marion Nos. 9-13-43, 9-13-44, 9-13-45, 2014-Ohio-1136, ¶ 28,
citing R.C. 2151.414(B)(1).
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{¶19} Regarding the first step, “the findings under R.C. 2151.414(B)(1)(a)
and R.C. 2151.414(B)(1)(d) are alternative findings, [and] each is independently
sufficient to use as a basis to grant the Agency’s motion for permanent custody.” In
re A.M., 2015-Ohio-2740, at ¶ 14, quoting In re M.R., 3d Dist. Defiance No. 4-12-
18, 2013-Ohio-1302, ¶ 80. R.C. 2151.414(B)(1)(a) provides grounds for a grant of
permanent custody when (1) “[t]he child * * * has not been in the temporary custody
of one or more public children services agencies * * * for twelve or more months of
a consecutive twenty-two-month period * * * [2] 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.” (Emphasis added.) R.C. 2151.414(B)(1)(a). The trial
court must consider the factors set forth R.C. 2151.414(E) in order to determine
“whether a child cannot be placed with either parent within a reasonable period of
time or should not be placed with the parents * * *.” R.C. 2151.414(E).
If one or more of the factors enumerated in R.C. 2151.414(E) is
found to be present by clear and convincing evidence, the trial
court shall find that the child cannot be placed with the parents
within a reasonable period of time or should not be placed with
the parents.
In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 54.
{¶20} R.C. 2151.414(B)(1)(d), however, governs situations in which a trial
court is considering a motion for permanent custody and “[t]he child has been in the
temporary custody of one or more public children services * * * for twelve or more
months of a consecutive twenty-two-month period.” R.C. 2151.414(B)(1)(d).
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For the purposes of division (B)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency
on the earlier of the date the child is adjudicated pursuant to
section 2151.28 of the Revised Code or the date that is sixty days
after the removal of the child from home.
R.C. 2151.414(B)(1)(e). Further, “the time that passes between the filing of a
motion for permanent custody and the permanent-custody hearing does not count
toward the 12-month period set forth in R.C. 2151.414(B)(1)(d).” Id. at ¶ 26.
“Under the plain language of R.C. 2151.414(B)(1)(d), when a child has been in an
agency’s temporary custody for 12 or more months of a consecutive 22-month
period, a trial court need not find that the child cannot be placed with either parent
within a reasonable time or should not be placed with the parents.” In re A.M.,
2015-Ohio-2740, at ¶ 14.
{¶21} “If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,” the trial court proceeds to the second step of this analysis
and “must determine, by clear and convincing evidence, whether granting the
agency permanent custody of the child is in the child’s best interest.” (Emphasis
sic.) In re A.F. at ¶ 55. R.C. 2151.414(D)(1) provides a nonexclusive list of factors
for a trial court to consider in determining whether an order of permanent custody
is in the child’s best interests and reads, in its relevant part, as follows:
[T]he 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-
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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 * * *;
(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 divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1).
Upon review, an appellate court ‘must examine the record and
determine if the trier of fact had sufficient evidence before it to
satisfy this burden of proof.’ ‘A reviewing court will not reverse a
trial court’s determination unless it is not supported by clear and
convincing evidence.’
(Citations omitted.) In re A.M., 2015-Ohio-2740, at ¶ 16, quoting In re H.M.K., 3d
Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 43.
Clear and convincing evidence is more than a preponderance of
the evidence but not as much evidence as required to establish
guilt beyond a reasonable doubt as in a criminal case; rather, it is
evidence which provides the trier of fact with a firm belief or
conviction as to the facts sought to be established.
Id., quoting In re H.M.K., at ¶ 42.
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Legal Analysis
{¶22} Wise argues that the first step required under R.C. 2151.414(B)(1)(d)
was not satisfied because “the record * * * did not reflect that the children had been
with appellee the entire ‘consecutive’ previous twenty-two months.” Appellant’s
Brief, 14. However, a plain reading of R.C. 2151.414(B)(1)(d) does not require JW
and SW to have been with MCCS for twenty-two consecutive months in order for
permanent custody to be granted. The statute requires that the children were “in the
temporary custody of one or more public children services agencies * * * for twelve
or more months of a consecutive twenty-two-month period.” (Emphasis added.)
R.C. 2151.414(B)(1)(d).
{¶23} In this case, JW and SW were adjudicated as dependent children on
June 12, 2017, and MCCS filed a motion for permanent custody on July 5, 2018.
Doc. A7, A29, B8, B30. The record shows that JW and SW were in the temporary
custody of MCCS or the Holtens continuously in between the date of adjudication
and the date on which MCCS filed for permanent custody.2 Tr. 116, 159, 219-220.
2
After Morris passed away in January of 2017, JW and SW were taken into the custody of the agency
sometime thereafter, the exact date thereof not being contained in the record. Doc. A51, B50. Tr. 156.
However, these prior cases were dismissed on April 6, 2017, which is the same date that the cases before us
were filed. Doc. A51, B50. Prior to this date, JW and SW had been removed from their home and placed
into the custody of the agency. Doc. A51, B50. Thus, the dockets for cases 17-AB-00068 and 17-AB-00069
do not contain the relevant trial court orders from January of 2017. As we have the date on which JW and
SW were adjudicated as dependent children in the dockets before this Court and this is the later of the two
dates set forth in R.C. 2151.414(B)(1)(e), we opt to use the date of adjudication to determine whether the
time requirements of R.C. 2151.414(B)(1)(d) have been satisfied. The record shows that JW and SW spent
more than twelve months in between the June 12, 2017 adjudication and the July 5, 2018 motion for
permanent custody in the temporary custody of MCCS. Since JW and SW were removed from their home
more than sixty days prior to the date that they were adjudicated as dependent children, the time requirements
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Thus, JW and SW were in the temporary custody of MCCS for more than twelve
months in between June 12, 2017 and July 5, 2018. Doc. A7, A29, B8, B30.3 This
satisfies the time requirements of R.C. 2151.414(B)(1)(d). For this reason, Wise’s
second assignment of error is overruled.
Third Assignment of Error
{¶24} Wise asserts that the second step required by R.C. 2151.414(B)(1) has
not been satisfied, arguing that an order of permanent custody is not in JW or SW’s
best interest.
Legal Standard
{¶25} We herein reincorporate the legal standard set forth under appellant’s
second assignment of error.
Legal Analysis
{¶26} In this case, the trial court found that a grant of permanent custody to
MCCS was in the best interests of JW and SW. Doc. A51, B50. At the hearing, the
of R.C. 2151.414(B)(1)(d) are satisfied even when using the later of the two dates listed in R.C.
2151.414(B)(1).
3
There is currently a case pending before the Supreme Court of Ohio that addresses a certified conflict
regarding the calculation of time under R.C. 2151.414(B)(1)(d). In re N.M.P., 154 Ohio St.3d 1519, 2019-
Ohio-768, 118 N.E.3d 257. The Eleventh District has ruled that R.C. 2151.414(B)(1)(d) requires that a child
be in the temporary custody of a child services agency for twelve of the twenty-two months preceding the
filing of a motion for permanent custody. In re N.M.P., 11th Dist. Portage No. 2018-P-0056, 2018-Ohio-
5072. The Sixth District, on the other hand, has ruled that R.C. 2151.414(B)(1)(d) requires that an agency
has been involved with a child for twenty-two consecutive months and that the child has spent twelve of these
twenty-two consecutive months in the temporary custody of the child services agency. In re K.L., 6th Dist.
Lucas Nos. L-17-1201 and L-17-1210, 2017-Ohio-9003. However, in our case, MCCS first became involved
in this matter on April 6, 2015. Doc. A51, B50. The motion for permanent custody was filed on July 5,
2018. Doc. A51, B50. Thus, MCCS was involved for more than twenty-two consecutive months with JW
and SW. For this reason, we do not anticipate that In re N.M.P will have an impact on our determination in
the case presently before us.
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trial court heard testimony from Brittany Holten regarding the relationship that JW
and SW had with her family. Tr. 117, 123. See R.C. 2151.414(D)(1)(a). Holten
testified that SW and JW have formed positive relationships with her children and
have bonded with her husband. Tr. 121, 126. She also stated that she and her
husband were willing to adopt SW and JW. Tr. 127.
{¶27} R.C. 2151.414(D)(1)(b) directs the trial court to consider the “wishes
of the child * * * with due regard for the maturity of the child.” R.C.
2151.414(D)(1)(b). In this case, the guardian ad litem’s report noted the young ages
of the children in its section on the limited interview conducted with SW and JW.
Doc. A20, B21. Given the young ages of the children, there was no evidence as to
this factor.
{¶28} The trial court also heard testimony regarding the custodial history of
JW and SW. See R.C. 2151.414(D)(1)(c). JW and SW had been in the custody of
a kinship caregiver from January 2016 through January 2017. Tr. 154, 156. MCCS
was unable to obtain other kinship names from Hamon or Wise as options for
placement. Tr. 195, 252. In January 2017, MCCS took custody of JW and SW,
placing them in the care of Holten. Tr. 159. At the hearing, Holten testified that
JW and SW had been in her care since January of 2017 with the exception of two
weeks where JW returned to the care of MCCS. Tr. 116, 159, 219.
{¶29} JW and SW’s guardian ad litem also filed a report concluding that a
grant of permanent custody to MCCS would be in the children’s best interests. Doc.
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A20, B21. The report stated that the Holtens provided JW and SW with the
“structure that they desperately need as both boys have significant behavioral and
learning challenges.” Doc. A20, B21. The trial court also heard testimony that JW
and SW needed a stable home environment. However, the testimony at the hearing
indicated that Catherine was having difficulty in providing this kind of environment
as she was struggling to remain self-sufficient and consistent in her obligations. Tr.
112, 192, 229, 253. See R.C. 2151.414(D)(1)(d).
{¶30} Further, while R.C. 2151.414(D)(1)(e) might be applicable to JW’s
father, who was incarcerated at the time of the hearing, Hamon is not a party to this
appeal. Thus, R.C. 2151.414(D)(1)(e) does not appear to be applicable to Wise,
who is the appellant.
{¶31} The record indicates that the trial court considered the facts of this case
under the factors listed in R.C. 2151.414(D). Thus, after reviewing the record, we
conclude that the trial court’s determination was supported by sufficient evidence.
For this reason, Wise’s third assignment of error is overruled.
Fourth Assignment of Error
{¶32} Wise argues that the trial court erred by making a finding that the
factor listed in R.C. 2151.414(E)(1) was present in this case.
Legal Standard
{¶33} We herein reincorporate the legal standard set forth under appellant’s
second assignment of error.
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Legal Analysis
{¶34} In its judgment entry, the trial court found that a factor listed in
2151.414(E)(1) applied in this case. Doc. A51, B50. On appeal, Wise argues that
the trial court erred in making this finding. This R.C. 2151.414(E)(1) finding would
be necessary to support an award of permanent custody made pursuant to R.C.
2151.414(B)(1)(a). However, in this case, the trial court awarded permanent
custody of JW and SW to MCCS pursuant to R.C. 2151.414(B)(1)(d), finding that
JW and SW had been in the temporary custody of MCCS “for twelve or more
consecutive months of twenty-two month period.” Doc. A51, B50. Unlike R.C.
2151.414(B)(1)(a), R.C. 2151.414(B)(1)(d) does not require the trial court to find
that one of the R.C. 2151.414(E) factors applies in order to make an award of
permanent custody. See R.C. 2151.414(B)(1)(a).
{¶35} Under the second assignment of error, we concluded that R.C.
2151.414(B)(1)(d) provided an appropriate basis for the trial court to award
permanent custody to MCCS. Thus, even if the trial court erred in finding that the
R.C. 2151.414(E)(1) factor applies in this case, this finding was not necessary for
the trial court to make a proper award of permanent custody pursuant to R.C.
2151.414(B)(1)(d). For this reason, the question of whether the trial court’s finding
under R.C. 2151.414(E)(1) was appropriate is moot. Thus, this court declines to
address the substance of this challenge pursuant to App.R. 12(A)(1)(c).
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Fifth Assignment of Error
{¶36} Wise argues that she was denied her right to the effective assistance of
counsel in this case. Specifically, Wise alleges that her attorney failed to object to
several hearsay statements.
Legal Standard
{¶37} “In permanent custody proceedings, where parents face losing their
children, we apply the same test as the test for ineffective assistance of counsel in
criminal cases.” In re E.C., 3d Dist. Hancock No. 5-15-01, 2015-Ohio-2211, ¶ 40.
“Under Ohio law, ‘a properly licensed attorney is presumed to carry out his duties
in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-
2438, ¶ 40, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993 WL 270995(July 22, 1993). “In order to prove an ineffective assistance of counsel claim, the
appellant must carry the burden of establishing (1) that his or her counsel’s
performance was deficient and (2) that this deficient performance prejudiced the
defendant.” In re C.N., 3d Dist. Hardin Nos. 6-17-16 and 6-17-23, 2018-Ohio-2442,
¶ 16, quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). If the petitioner cannot prove one of these elements, “it [is]
unnecessary for a court to consider the other prong of the test.” State v. Walker,
2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).
{¶38} “First, the petitioner must establish that ‘counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel
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Case Nos. 9-18-29 and 9-18-30
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.’” State v. Norville, 3d Dist. Seneca No. 13-18-14, 2018-Ohio-4467, ¶
26, quoting Strickland at 687. “In order to show deficient performance, the
defendant must prove that counsel’s performance fell below an objective level of
reasonable representation.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,
848 N.E.2d 810, ¶ 95. “Counsel need not raise meritless issues or even all arguably
meritorious issues.” State v. Mayse, 3d Dist. Marion No. 9-16-50, 2017-Ohio-1483,
¶ 24. “Debatable strategic and tactical decisions may not form the basis of a claim
for ineffective assistance of counsel, even if, in hindsight, it looks as if a better
strategy had been available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶
56 (2d Dist.), citing State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶39} “Second, the petitioner needs to establish ‘that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.’” Norville at ¶ 27, quoting Strickland at 687. “To show prejudice, the
defendant must show a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” Conway at ¶ 95. Appellate
courts must determine from the record “whether the accused, under all the
circumstances, * * * had a fair trial and substantial justice was done.” State v.
Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting State v. Hester,
45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.
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Legal Analysis
{¶40} In this case, Wise alleges that her trial counsel failed to object to
several hearsay statements that were made by Brittany Holten and Hamilton.
However, “the failure to make objections is not alone enough to sustain a claim of
ineffective assistance of counsel.” Conway, supra, at ¶ 103. On numerous
occasions, Wise’s trial counsel objected on grounds of hearsay. Tr. 136, 214, 227,
231, 274, 277. Thus, the record does not support the conclusion that trial counsel
“made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed *
* * by the Sixth Amendment.” Strickland, supra, at 687. Even if we assume the
statements identified by Wise on appeal constitute hearsay, the decision not to object
to these statements appears, in the context of the hearing, to be a matter of trial
strategy as trial counsel frequently objected elsewhere, citing hearsay as grounds.
Conley at ¶ 56.
{¶41} Further, in bench trials, “[t]he trial court, as fact finder, is presumed to
have considered only relevant, material, and competent evidence in arriving at its
judgment unless the record shows affirmatively to the contrary.” In re Adoption of
Linder, 3d Dist. Paulding No. 11-04-07, 2004-Ohio-6962, ¶ 6. Thus, even if the
statements identified by Wise are hearsay, there is no indication in the record that
the trial court relied on these statements in reaching its decision. Finally, in her
arguments, Wise has not demonstrated how the outcome of this hearing would have
been different in the absence of these alleged errors on the part of her trial counsel.
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Thus, Wise has not carried the burden of establishing that she was denied her right
to the effective assistance of counsel. For these reasons, Wise’s fifth assignment of
error is overruled.
Conclusion
{¶42} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgments of the Family Division of the Marion County
Court of Common Pleas are affirmed.
Judgments Affirmed
SHAW and PRESTON, J.J., concur.
/hls
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