In re K.H.

[Cite as In re K.H., 2014-Ohio-1594.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES:
: Hon. Willam B. Hoffman. P.J.
K.H. : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
:
: Case No. 13-CA-100
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Juvenile
Division, Case No. C2010-0314
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 11, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant E.F.
JENNA E. JOSEPH JOHN D. WEAVER
Assistant Prosecuting Attorney 542 S. Drexel Ave
for Licking County Dept. of Job Bexley, OH 43209
and Family Services
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 13-CA-100 2
Baldwin, J.
{¶1} Appellant E.F., the natural father of K.H., appeals a judgment of the
Licking County Common Pleas Court, Juvenile Division awarding permanent custody of
his son K.H. to appellee Licking County Department of Job and Family Services.
STATEMENT OF FACTS AND CASE
{¶2} K.H. was born on April 22, 2010. K.H. was born with methadone in his
system, and was placed in foster care when he was released from the hospital following
his birth. He was placed in emergency shelter care on April 28, 2010. He was found to
be abused and dependent on July 14, 2010, and appellee was awarded temporary
custody of K.H. Appellee filed a motion for permanent custody on July 22, 2011.
{¶3} Appellant lives with A.H., the natural mother of K.H., at her parents’ home.
A.H. did not actively contest the motion for permanent custody. Appellant did not make
substantial progress on the case plan. He worked part-time as a tree trimmer, with only
sporadic income. He does not have a high school diploma or a GED, and does not
have a valid driver’s license. He did not pay rent to A.H.’s parents, nor did he pay for
utilities. He has an older child for whom he is delinquent on child support.
{¶4} After a successful release from substance abuse counseling on
September 9, 2010, appellant relapsed and tested positive for cocaine on May 12,
2011. He conceded that after the positive test, he did not go back to the treatment
program. He had two positive drug tests for cocaine and failed to appear for a drug test
on four occasions. According to the terms of his case plan, failure to comply with a
random drug screening is considered to be a positive drug test. He was unsuccessfully
discharged from parenting skills classes.
Licking County, Case No. 13-CA-100 3
{¶5} Appellant and A.H. were inconsistent as to supervised visitation with K.H.
The caseworker became concerned about E.F. when he appeared for visits once with
black eyes and once with stab marks on his face. He also made threatening comments
to the caseworker.
{¶6} After a hearing before a magistrate on the motion for permanent custody,
the magistrate found that appellant was incapable of parenting the child in the
foreseeable future, and that permanent custody was in the best interest of K.H. After
objections were filed to the magistrate’s decision, the trial court entered judgment
awarding permanent custody of K.H. to appellee. The court expressed concerns with
the fact that A.H. was not interested in regaining custody of K.H. while appellant wanted
custody of K.H., yet the two of them continued to reside together in the home of A.H.’s
parents.
{¶7} Appellant assigns the following error on appeal:
{¶8} “I. APPELLANT WAS PREJUDICED BY THE INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.”
{¶9} “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.” In re Wingo, 143 Ohio App.3d 652, 666,
758 N.E.2d 780 (2001), quoting In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93(1993). This Court has recognized ineffective assistance claims in permanent custody
appeals. See, e.g., In re Utt Children, 5th Dist. Stark App.No.2003CA00196, 2003–
Ohio–4576.
Licking County, Case No. 13-CA-100 4
{¶10} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show that counsel's performance fell
below an objective standard of reasonable representation and that but for counsel’s
error, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, appellant must show that
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result. Id.{¶11} Appellant argues that counsel was ineffective for failing to file a writ of
procedendo due to the court’s delay in issuing a decision in the instant case. R.C.
2151.414(A)(2) sets forth the following time guidelines:
{¶12} “(2) The court shall hold the hearing scheduled pursuant to division (A)(1)
of this section not later than one hundred twenty days after the agency files the motion
for permanent custody, except that, for good cause shown, the court may continue the
hearing for a reasonable period of time beyond the one-hundred-twenty-day deadline.
The court shall issue an order that grants, denies, or otherwise disposes of the motion
for permanent custody, and journalize the order, not later than two hundred days after
the agency files the motion. . . .The failure of the court to comply with the time periods
set forth in division (A)(2) of this section does not affect the authority of the court to
issue any order under this chapter and does not provide any basis for attacking the
jurisdiction of the court or the validity of any order of the court.”
Licking County, Case No. 13-CA-100 5
{¶13} The motion for permanent custody was filed on July 25, 2011, and the
hearing was held on October 18, 2011. Therefore, the hearing was held within 120
days after appellee filed the motion for permanent custody. However, while the
magistrate issued a decision on October 26, 2011, the trial court did not enter judgment
granting the motion for permanent custody until October 1, 2013, more than two
hundred days after the motion was filed.
{¶14} Because the time provisions of R.C. 2151.414(A)(2) are directory and not
mandatory, the Ohio Supreme Court has held that a litigant must seek a writ of
procedendo against the juvenile court if it does not comply with these time limits. In re
Davis, 84 Ohio St. 3d 520, 523-524, 1999-Ohio-0419. If a party does not seek such a
writ, he is stopped from arguing on appeal that delay by the juvenile court violated his
due process rights. Id. at 524.
{¶15} Appellant argues that due to the delay in the instant case, if counsel had
filed a writ of procedendo, the motion for permanent custody would have been denied
based on a denial of appellant’s due process rights. Appellant cites to In re Omosun
Children, 106 Ohio App. 3d 813, 818, 667 N.E. 2d 431, where the Eleventh District
stated, “Twenty-eight months of limbo in a juvenile dispositional hearing is, in our
opinion, a per se due process violation, barring extraordinary circumstances.” Appellant
argues that the delay from the July 25, 2011 filing of the motion for permanent custody
to the decision on October 1, 2013, is similarly a per se denial of due process, and
because any error has been waived by counsel’s failure to preserve the issue by filing a
writ of procedendo, his counsel was ineffective.
Licking County, Case No. 13-CA-100 6
{¶16} In considering a similar argument to that made by appellant concerning
the Omosun case, the Seventh District stated:
{¶17} “As for appellant's quote from Omosun, we note that the quote was made
in response to a trial court that waited twenty-eight months after the dispositional
hearing to file the dispositional order which was required to be filed within seven days of
the hearing and which contained a conclusion that was against the manifest weight of
the evidence. Here, the magistrate's order was entered immediately after the hearing.
Regardless, Omosun has been overruled by the Ohio Supreme Court in the case of In
re Davis (1999), 84 Ohio St.3d 520, 705 N.E.2d 1219, where the Court specifically
addressed an appeal that had been certified as being in conflict with Omosun. In that
case, the Court found that where a juvenile judge waited eighteen months to release its
dispositional order, the parties could not complain of prejudice or due process violations
on appeal where the time limit section of the statute does not specifically provide a
remedy; rather, the proper avenue would have been to file a writ of procedendo to force
the judge to discontinue the unnecessary delay. Id. at 524, 705 N.E.2d 1219. As such, it
appears to this court that, although a speedier process would have been preferable, we
cannot reverse the trial court's grant of continuances under the circumstances.” In the
Matter of Joseph Hess, 7th Dist. Jefferson No. 02 JE 37, 2003-Ohio-1429, ¶40.
{¶18} It is not clear from the record what caused the delay from the entry of the
magistrate’s decision on October 26, 2011, to the entry of the trial court’s judgment on
October 1, 2013. However, appellant has not demonstrated prejudice from the delay.
While the filing of a writ of procedendo may have forced the judge to act in a timely
fashion, the record does not establish that the result of the proceeding would have been
Licking County, Case No. 13-CA-100 7
different. The record contains abundant evidence to support the magistrate’s decision
and the court’s judgment that K.H. could not be placed with appellant in the foreseeable
future and that permanent custody was in K.H.’s best interest. The case plan required
appellant to obtain and maintain stable income and housing. He was to complete
parenting classes and successfully complete a drug and alcohol assessment at LAPP.
He was required to complete drug and alcohol screens on the day of the request, and if
he failed to do so the missed screen would be considered a positive drug test.
Appellant was successful initially in the LAPP program, but after a positive cocaine test
did not return. He had two positive drug screens and missed four screens. He did not
have stable income, did not pay rent or utilities, and continued to live with A.H. in the
home of her parents. He did not complete parenting classes. He was also
unsuccessfully discharged from a parenting mentor program because the mentor was
unable to contact him. While filing a writ of procedendo may have resulted in an earlier
decision by the court, appellant has not demonstrated that his due process rights were
violated by the delay or that the result of the proceeding would have been different.
Licking County, Case No. 13-CA-100 8
{¶19} The assignment of error is overruled. The judgment of the Licking County
Common Pleas Court, Juvenile Division, is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Farmer, J. concur.