In re I.A.C.A.

[Cite as In re I.A.C.A., 2015-Ohio-256.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
I.A.C.A. et al., : No. 14AP-638
(C.P.C. No. 12JU-768)
(K.C., :
(ACCELERATED CALENDAR)
Appellant). :
D E C I S I O N
Rendered on January 27, 2015
Giorgianni Law LLC, and Paul Giorgianni, for appellant
K.C.
Robert J. McClaren, for appellee Franklin County Children
Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
TYACK, J.
{¶ 1} K.C. is appealing from a judgment of the Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch, granting permanent custody of
two of her children to Franklin County Children Services ("FCCS").
{¶ 2} By way of background, on January 19, 2012, a complaint was filed alleging
the two named children in this action were neglected and dependent. A caregiver of the
children had brought them to FCCS stating she could not care for them, and the
whereabouts of both parents were unknown. The alleged father was reportedly dealing
drugs and had been deported to Mexico. K.C. was reportedly abusing heroin and
prescription drugs, had a history of unstable living and housing, frequently left the
children with relatives for long periods, and had a criminal history. The older child was
No. 14AP-638 2
seven years old and had never been enrolled in school. She was found to have lice. The
younger child had trouble sleeping and breathing at night.
{¶ 3} FCCS was granted temporary custody on January 20, 2012. A guardian ad
litem ("GAL") was appointed for the children. In her first report, the GAL noted that the
younger child's teeth were so decayed that most of them needed to be removed, and that
he could only eat soft foods. A case plan was approved, adopted, and made an order of the
court.
{¶ 4} The children in question are now ten and seven. The older child suffers
from post traumatic stress disorder and other psychological issues. The younger child
also suffers from post-traumatic stress disorder. Both children require extensive
psychological therapy.
{¶ 5} Their mother, K.C., has a long history of abusing controlled substances,
including prescription medication and heroin. Because of her drug problems, she spent
time in the Delaware County jail, a community control facility, and then a halfway house.
{¶ 6} K.C. violated the terms of her community control and thus was returned to
jail from late January to March 2013.
{¶ 7} After March 2013, K.C. was scheduled for regular drug testing, but failed to
show up for over two-thirds of her scheduled tests. Despite this, K.C. was allowed visits
with her children beginning in May 2014.
{¶ 8} A hearing was conducted on July 11, 14, and 15, 2014, and the trial court
issued its decision and judgment entry on July 18, 2014. K.C. filed a timely notice of
appeal.
{¶ 9} She assigns five errors for our consideration:
[I.] The Juvenile Court placed the burden upon Mother to
disprove FCCS's allegation that she continues to consume
illegal drugs.
[II.] The Juvenile Court erroneously assumed the truth of the
allegations in FCCS's Complaint.
[III.] The Juvenile Court erroneously assumed the truth of
the guardian ad litem's pre-trial report.
[IV.] With respect to both the sufficiency of the evidence and
the manifest weight of the evidence, FCCS failed to prove
No. 14AP-638 3
that terminating Mother's parental rights is in the best
interest of the children.
[V.] Mother was denied effective assistance of counsel.
{¶ 10} A decision to award permanent custody requires the trial court to undergo a
two-step process. First, a trial court must determine if any of the factors set forth in R.C.
2151.414(B)(1) apply. Here, R.C. 2151.414(B)(1)(d) provides in relevant part:
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.
{¶ 11} By the time the motion for permanent commitment was ready for
adjudication, the children had been in the custody of FCCS for two years. Thus, R.C.
2151.414(B)(1)(d) has been satisfied. As a result, the juvenile court was focused on the
second step: whether or not FCCS had shown by clear and convincing evidence that it was
in the best interests of the children for permanent custody to be granted to FCCS.
Santosky v. Kramer, 455 U.S. 745, 748 (1982); R.C. 2151.414(B)(1). The trial court found
that FCCS had met that burden.
{¶ 12} In her first assignment of error, counsel for K.C. argues the trial court
shifted the burden of proof to the mother to prove that she was no longer abusing drugs.
Our review of the record shows that the trial court had ample evidence that K.C.
continued to suffer from a controlled substance problem. K.C. had been physically
detoxified by her incarcerations, but returned to abusing controlled substances after being
released from custody. The Delaware County courts gave her repeated opportunities to
attain sobriety, but she failed to fully benefit from the chances she was given.
{¶ 13} The juvenile court in Franklin County could look at K.C.'s conviction for
possession of heroin and the failure to take advantage of the community control granted
to K.C. as an indication that K.C. had not beaten her drug problem. The fact K.C. skipped
most of her urine drops in recent history also could be construed as an indication that
K.C. was trying to conceal her on-going drug use from the courts.
{¶ 14} When called to testify, K.C. acknowledged positive drug screens between
March 13, 2013 and July 14, 2014. She acknowledged not undergoing any random drug
No. 14AP-638 4
screens from February 25, to July 14, 2014. She agreed that she was not complying with
the random drug screen portion of the case plan, but insisted she was clean and sober.
{¶ 15} The juvenile court could readily find evidence that K.C. had not stopped
using controlled substances and did so without placing the burden on anyone to prove or
disprove K.C.'s drug abuse. The facts clearly supported the trial court's findings in this
issue.
{¶ 16} The first assignment of error is overruled.
{¶ 17} In her second assignment of error, counsel for K.C. argues the trial court
assumed facts to be true that were mere allegations in the complaint filed by FCCS.
{¶ 18} On March 12, 2012, the juvenile court found the children to be neglected
and dependent as a result of the information contained in the complaint. There was no
appeal from this adjudication. "[A]n appeal of an adjudication order of abuse,
dependency, or neglect of a child and the award of temporary custody to a children
services agency pursuant to R.C. 2151.353(A)(2) must be filed within 30 days of the
judgment entry pursuant to App.R. 4(A)." In re H.F., 120 Ohio St. 3d 499, 2008-Ohio-
6810, ¶ 18.
{¶ 19} Moreover, the evidence showed that K.C. claimed she was entering a
rehabilitation facility when actually she was going to jail. There was testimony that the
children and the persons caring for the children did not know where to find her. Thus, it
is reasonable to infer that FCCS did not know where to find her when it initially received
the children.
{¶ 20} After relatives had cared for the children for months, one of them got tired
of providing free care and contacted FCCS.
{¶ 21} During her absence, K.C. obviously was not seeing to the special care needs
of the children.
{¶ 22} The second assignment of error presents no reversible error and is
overruled.
{¶ 23} In her third assignment of error, counsel for K.C. argues the trial court
relied upon an unauthenticated report by the children's guardian ad litem that was not
admitted into evidence at trial.
No. 14AP-638 5
{¶ 24} A guardian ad litem had been appointed initially to assist the court. The
guardian ad litem filed a report for the benefit of the court, but did not expect the report
to be used as evidence. We note a second guardian ad litem was appointed later shortly
before trial, and participated in the proceedings.
{¶ 25} Again, this report was filed on March 9, 2012 prior to the adjudication of the
complaint and initial order of dependency and neglect, and an appeal was not taken from
that initial disposition.
{¶ 26} The third assignment of error is overruled.
{¶ 27} In her fourth assignment of error, K.C. argues that FCCS failed to prove that
terminating K.C.'s parental rights was in the best interest of the children.
{¶ 28} As discussed above, a juvenile court may terminate parental rights only
when there is clear and convincing evidence that termination is in the best interest of the
children. Santosky at 748; R.C. 2151.414(B)(1).
{¶ 29} With respect to determining the best interests of the children:
R.C. 2151.414(D) provides that, in determining the best
interest of the child, the court must consider all relevant
factors, including, but not limited to, the following: (1) the
interaction and interrelationship of the child with the child's
parents, siblings, relatives, foster caregivers, out-of-home
providers, and any other person who may significantly affect
the child, (2) the wishes of the child, as expressed directly by
the child or through the child's GAL, with due regard for the
maturity of the child, (3) 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 12 or more months of a
consecutive 22–month period, (4) the child's need for a
legally secure permanent placement and whether that type of
placement can be achieved without a grant of permanent
custody to the agency, and (5) whether any of the factors in
divisions (E)(7) to (11) of this section apply in relation to the
parents and child. The factors set forth in R.C. 2151.414(E)(7)
through (11) include: (1) whether the parents have been
convicted of or pled guilty to various crimes, (2) whether
medical treatment or food has been withheld from the child,
(3) whether the parent has placed the child at a substantial
risk of harm due to alcohol or drug abuse, (4) whether the
parent has abandoned the child, and (5) whether the parent
has had parental rights terminated with respect to a sibling
of the child.
No. 14AP-638 6
In re R.G., 10th Dist. No. 12AP-748, 2013-Ohio-914, ¶ 9.
{¶ 30} There is no question that K.C. and her older child are bonded, and that the
two children are bonded to each other. However, as the trial court found, "[K.C.] has also
inappropriately brought male friends to visits and allowed them to freely interact with
[the older child], even after knowing that [the older child] had been sexually acting out
with her bother and has been in trauma therapy." (Decision, at 6.)
{¶ 31} The older child's wish is to be reunited with her mother, but this desire is
somewhat ill-informed as it is based on the premise that her mother is drug free. The trial
court had the opportunity to interview the child who recalled that her "mother had a lot of
boyfriends whom [I.A.C.A.] did not like as they always kept mother in a room." (Decision,
at 8.) The older child believes her mother to be free of drugs and thinks she is a changed
person. The evidence shows that K.C. has not been able to achieve a drug free sober life,
and the guardian ad litem recommended that the court not separate the children and that
the court grant permanent custody for purposes of adoption.
{¶ 32} The evidence before the trial court showed that K.C.'s children have special
needs. They need extensive therapy and a safe home without drugs. K.C. has not
demonstrated that she can care for herself, let alone her young children. The evidence
more than proved that these children needed stability and treatment K.C. cannot provide.
{¶ 33} The fourth assignment of error is overruled.
{¶ 34} In her fifth assignment of error, counsel for K.C. argues her trial counsel
was ineffective in the following ways: (1) for failing during closing argument to comment
upon the caseworker's double hearsay testimony about a prospective adoption placement
for the children; (2) for failing during closing argument to comment upon the absence of
any direct evidence of drug-test results; and (3) for all but waiving closing argument.
{¶ 35} K.C. has a right to effective assistance of counsel. R.C. 2151.352; Juv.R.
4(A); In re C.P., 10th Dist. No. 08AP-1128, 2009-Ohio-2760, ¶ 56. To succeed on such a
claim, K.C. must satisfy the two-pronged test established in Strickland v. Washington,
466 U.S. 668 (1984). First, K.C. must demonstrate that counsel's performance was
deficient, and second, that there exists a reasonable probability that, but for counsel's
error, the result of the proceeding would have been different. In re C.P. at ¶ 58.
No. 14AP-638 7
{¶ 36} The record before us does not indicate that K.C.'s trial counsel failed her in
any way. The trial court noted that K.C. had gone for months without attending a drug
screening appointment. This refusal to be screened was a strong indication that K.C.'s
drug problems continued. Pointing out the lack of positive drug test results would only
serve to highlight the issue of missed drug screens. The children needed stability. No
attorney could change these facts.
{¶ 37} The fifth assignment of error is overruled.
{¶ 38} All five assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch is affirmed.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.