In re NAP

[Cite as In re NAP, 2013-Ohio-689.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
IN THE MATTER OF: :
:
N.A.P. :
and :
M.D.P. : Case No. 12CA30
: 12CA31
:
: DECISION AND JUDGMENT
: ENTRY
:
: Released: 02/13/13
APPEARANCES:
Dennis L. Sipe, BUELL & SIPE CO., L.P.A., Marietta, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Kevin A.
Rings, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for
Appellee.
McFarland, P. J.
{¶1} R.P., the natural father of N.A.P. and M.D.P., appeals the trial court’s
judgment that awarded Washington County Children Services Board (WCCS)
permanent custody of his two children. He asserts that the trial court should have
continued the permanent custody hearing in order to permit him an opportunity to
reunite with his children. Because the permanent custody hearing already had been
delayed three times and because approximately ten months had elapsed between
Washington App. Nos. 12CA30 & 12CA31 2
the date WCCS filed its permanent custody motion and the date of the thrice
rescheduled hearing, the trial court did not abuse its discretion by overruling
appellant’s motion to continue.
{¶2} Appellant additionally argues that the trial court erred by determining
that awarding WCCS would serve the children’s best interests. Ample competent
and credible evidence supports the trial court’s decision that awarding WCCS
permanent custody of the children would serve their best interests. The children
had been in WCCS’s temporary custody for over two years at the time of the
permanent custody hearing and had absolutely no physical contact with appellant
during that time. The children had bonded with the foster family and the foster
family is willing to adopt the children. Appellant had not been released from
confinement at the time of the permanent custody hearing and thus could not
provide the children with a legally secure permanent placement. Additionally,
WCCS was unable to find a relative who could provide a legally secure permanent
placement. Appellant’s parents were considered but deemed inappropriate. Based
upon all of the evidence presented at the permanent custody hearing, the trial court
reasonably could have determined that placing the children in WCCS’s permanent
custody and allowing them to be adopted would further their best interests and that
subjecting them to an uncertain future with appellant would not further their best
interests.
Washington App. Nos. 12CA30 & 12CA31 3
{¶3} Appellant next asserts that his trial counsel rendered ineffective
assistance of counsel by failing to advise appellant’s parents that they should seek
custody of the children and by failing to recognize that the trial court did not need
to consider relative placement before awarding WCCS permanent custody.
Because appellant cannot show that either alleged deficiency prejudiced the
outcome of the case, he cannot demonstrate ineffective assistance of counsel.
Accordingly, we overrule appellant’s three assignments of error and affirm the trial
court’s judgment.
I. FACTS
{¶4} On September 11, 2009, WCCS filed a complaint that alleged three-
year old N.A.P. and almost two-year old M.D.P. to be dependent, neglected, and
abused children and that requested temporary custody of the children. At an initial
hearing, appellant waived his right to counsel.
{¶5} At the December 1, 2009 adjudicatory and agreed disposition hearing,
appellant appeared pro se, having previously waived counsel. Appellant and the
children’s mother admitted that the children are dependent children. The court
dismissed the abuse and neglect allegations. Appellant and the children’s mother
agreed to continue the children in WCCS’s temporary custody.
{¶6} On December 9, 2009, the court adjudicated the children dependent and
awarded WCCS temporary custody. The court found that WCCS used reasonable
Washington App. Nos. 12CA30 & 12CA31 4
efforts to prevent the children’s continued removal “but * * * due to [appellant’s]
upcoming four-year prison sentence * * * it is in the best interest of the child[ren]
to remain in” WCCS’s temporary custody.
{¶7} On March 3, 2011, WCCS filed a permanent custody motion. WCCS
alleged that the children had been in its temporary custody continuously since
December 2009. The court initially set a hearing for May 31, 2011. The mother
subsequently requested the court to extend the temporary custody order for an
additional six months in order to allow her to reunify with her children. The court
then continued the permanent custody hearing until August 31, 2011. On August
30, 2011, the mother requested another continuance, and the court continued the
hearing until November 3, 2011.
{¶8} On October 12, 2011, appellant requested counsel. On October 26,
2011, the court appointed counsel for appellant and continued the hearing until
January 4, 2012.
{¶9} Appellant later filed a motion for custody of the children and requested
the court to continue the case so that he may have a chance to be reunified with the
children. He alleged that he will be released from SEPTA less than one week after
the January 4, 2012 hearing date.
{¶10} On December 7, 2011, the court denied appellant’s motion to
continue. The court noted that the case had been continued three previous times
Washington App. Nos. 12CA30 & 12CA31 5
and that under R.C. 2151.414, the permanent custody motion should be heard
within 200 days. The court determined that “the parties have had sufficient time to
attempt to work the case plan and that no additional continuances should be
granted.”
{¶11} At the permanent custody hearing, WCCS caseworker Stephanie
Amrine stated that appellant was unable to participate in the case plan due to his
incarceration. She explained that appellant sent tape recordings and cards to the
children while incarcerated. Amrine testified that WCCS initially attempted to
place the children with the paternal grandparents, but the grandmother had mental
health issues and her psychologist advised that “she was not stable enough to have
children in the home long term.” She had informed the grandparents that they
were not an acceptable placement option due to the grandmother’s mental health
issues. Amrine stated that she continued “to follow-up” on the grandparents’ status
throughout her involvement in the case.
{¶12} WCCS caseworker Sally Ferguson testified that appellant will remain
incarcerated until January 14 or 15, 2012, “and these children have been in foster
care for too long to really keep them in foster care much longer, to wait for him to
get out of jail and show that he can be good in society.”
Washington App. Nos. 12CA30 & 12CA31 6
{¶13} Appellant testified that he has served about two and one-half years of
a four-year sentence. He admitted that if he violates the terms of his release, he
could return to prison to serve the remainder of his sentence.
{¶14} On May 21, 2012, appellant filed a motion for visitation. He alleged
that he has been released from SEPTA and gainfully employed.
{¶15} On July 19, 2012, appellant filed a motion to dismiss the case because
seven and one-half months had elapsed since the hearing date and the court had not
issued a decision.
{¶16} On July 20, 2012, the trial court granted WCCS permanent custody of
the children. The court found that R.C. 2151.414(B)(1)(d) applied: “[T]he
child[ren] had been out of the mother’s home and in the temporary custody of the
Agency for 17 actual months at the time the Agency filed for permanent custody.
Since the beginning of the case until the date of the permanency hearing the
child[ren] ha[ve] been in the temporary custody of the Agency for 27 months.”
The court determined that the foster family is meeting all of the children’s needs
and that the children share a bond with the foster family. The court further found
that neither parent can provide the children with “stability and permanency” and
that “[p]ermanency and stability can not [sic] be achieved without a grant of
permanent custody.” The court observed that the foster parents are willing to
adopt the child. The court thus terminated appellant’s parental rights.
Washington App. Nos. 12CA30 & 12CA31 7
II. ASSIGNMENTS OF ERROR
{¶17} Appellant timely appealed the trial court’s judgment and raises three
assignments of error:
First Assignment of Error:
The trial court abused its discretion when it overruled the Father’s
motions for a continuance.
Second Assignment of Error:
The trial court erred when it determined by clear and convincing
evidence that it was in the best interests of the Children for Children
Services to be awarded permanent custody.
Third Assignment of Error:
The acts and omissions of counsel for the Father deprived him of the
effective assistance of counsel.
III. MOTION TO CONTINUE
{¶18} In his first assignment of error, appellant asserts that the trial court
abused its discretion when it overruled his motion to continue the January 4, 2012
dispositional hearing.
{¶19} Juv.R. 23 states that “continuances shall be granted only when
imperative to secure fair treatment for the parties.” A trial court possesses broad
discretion when ruling on a motion to continue a juvenile proceeding. In re
K.M.D., 4th Dist. No. 11CA3289, 2012-Ohio-755, 2012 WL 605593, ¶49. Thus,
we will not overturn a trial court’s ruling regarding a motion to continue unless the
Washington App. Nos. 12CA30 & 12CA31 8
court abused its discretion. Id. “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.” State v. Adams, 62 Ohio St. 2d 151,
157, 404 N.E.2d 144 (1980). Furthermore, the abuse of discretion standard does
not permit a reviewing court to substitute its judgment for that of the trial court.
Berk v. Matthews, 53 Ohio St. 3d 161, 169, 559 N.E.2d 1301 (1993).
{¶20} When an appellate court reviews a trial court’s ruling on a motion to
continue, the court “‘”appl[ies] 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.”’” K.M.D. at ¶50,
quoting 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.
When a trial court considers a motion to continue, it should consider the following
factors: (1) the length of the delay requested; (2) whether other continuances have
been requested and received; (3) the inconvenience to litigants, witnesses,
opposing counsel and the court; (4) whether the requested delay is for legitimate
reasons or whether it is dilatory, purposeful, or contrived; (5) whether the
defendant contributed to the circumstance which gives rise to the request for a
continuance; and (6) other relevant factors, depending on the unique facts of each
Washington App. Nos. 12CA30 & 12CA31 9
case.’” K.M.D. at ¶51, quoting State v. Unger, 67 Ohio St. 2d 65, 67–68, 423
N.E.2d 1078 (1981).
{¶21} In the case at bar, the trial court did not abuse its discretion by
denying appellant’s motion to continue the permanent custody hearing. The court
rationally could have determined that continuing the hearing for an unspecified
period of time in order to allow appellant the opportunity to reunite with his
children would not be in the children’s best interests when they already had been in
WCCS’s temporary custody for over two years at the time of the permanent
custody hearing. Appellant did not demonstrate how long the permanent custody
hearing would need to be delayed in order to provide him an opportunity to reunite
with the children. Moreover, the record is far from clear that the children would
have been returned to appellant’s custody within a reasonable time. Appellant
claims that he will be able to provide for the children, but he remains on probation
and faces additional prison time if he violates the terms of his release. Thus, the
children’s future with appellant would be far from certain. Instead, continuing the
hearing to allow appellant a chance to demonstrate his ability to properly care for
the children would further delay the uncertainty during their tender years.
Additionally, appellant has been physically out of the children’s lives for nearly
two and one-half years due to his incarceration. Not only would appellant need to
demonstrate that he could provide for the children, he also would need to establish
Washington App. Nos. 12CA30 & 12CA31 10
a bond with them. The trial court reasonably could have determined that appellant
would not be able to establish either within a reasonable period of time so as to
justify a further delay of the permanent custody hearing. The trial court may have
believed that eliminating the children’s uncertainty and affording them the stability
of an adoptive home would be in their best interests.
{¶22} Furthermore, by the time appellant filed his motion to continue, the
hearing already had been continued three times, resulting in a seven-month delay.
The children had been in WCCS’s temporary custody for approximately two years
when appellant filed his motion to continue. The trial court could have reasonably
determined that any further delay contributing to the children’s instability and lack
of permanency would not further their best interest. In fact, further delaying the
proceedings and subjecting the children to continued uncertainty as to whether
appellant would prove to be able to reunite with them might well be detrimental to
their best interests. In re S.F.T., 12th Dist. Nos. CA2010-02-043, CA2010-02-044,
CA2010-02-045, CA2010-02-046, 2010-Ohio-3706, 2010 WL 3159582, ¶12
(stating that “[f]urther delay in deciding * * * permanent custody motion would not
be in the best interests of these children who had already been in the temporary
custody * * * for a total of approximately 26 months”). Accord In re Z.D., 5th Dist.
No. 12CA29, 2012-Ohio-3658, ¶13, quoting In re K.G., 9th Dist. Nos. 03CA0066,
03CA0067, 03CA0068, 2004–Ohio–1421, ¶23. (“Clearly, ‘ * * * lengthy delays
Washington App. Nos. 12CA30 & 12CA31 11
were not within the intent of the legislature when it shortened the permanent
custody time frames [under R.C. 2151.414].’”). Consequently, the trial court did
not abuse its discretion by refusing to subject the children to further continued
uncertainty. We certainly sympathize with appellant, but our sympathy for
appellant does not override the children’s best interests.
{¶23} Accordingly, based upon the foregoing reasons, we overrule
appellant’s first assignment of error.
IV. PERMANENT CUSTODY
{¶24} In his second assignment of error, appellant argues that the trial court
erred by determining that it was in the children’s best interests to award appellee
permanent custody. He contends that the trial court wrongly found that he “had no
contact” with the children. Appellant points to the testimony at the permanent
custody hearing that he sent cards and audiotapes to the children and that he spoke
with them on the telephone. He further asserts that appellee did not demonstrate
that it made a reasonable effort to reunite the children with the father.
{¶25} Appellant additionally argues that the trial court failed to consider the
children’s relationship with their grandparents. Appellant argues that if the court
had found that he had contact with his children and had considered the children’s
relationship with their grandparents, then the court would have weighed the best
Washington App. Nos. 12CA30 & 12CA31 12
interests factors more favorably towards the parents and less favorably towards
awarding appellee permanent custody.
A. STANDARD OF REVIEW
{¶26} Generally, an appellate court will not reverse a trial court’s permanent
custody decision if some competent and credible evidence supports the judgment.
In re Perry, 4th Dist. Nos. 06CA648 and 06CA649, 2006–Ohio–6128, at ¶40, citing
State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990). Thus, our review of
a trial court’s permanent custody decision is deferential. See In re Hilyard, 4th
Dist. Nos. 05CA600, 05CA601, 05CA602, 05CA603, 05CA604, 05CA606,
05CA607, 05CA608, 05CA609, 2006–Ohio–1965, at ¶17. Moreover, “an
appellate court should not substitute its judgment for that of the trial court when
there exists competent and credible evidence supporting the findings of fact and
conclusion of law.” Schiebel, 55 Ohio St. 3d at 74. Issues relating to the credibility
of witnesses and the weight to be given the evidence are primarily for the trier of
fact. As the court explained in Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77,
80, 461 N.E.2d 1273 (1984): “The underlying rationale of giving deference to the
findings of the trial court rests with the knowledge that the trial judge is best able
to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.”
Washington App. Nos. 12CA30 & 12CA31 13
{¶27} Moreover, deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evident in the parties’
demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re
Christian, 4th Dist. No. 04CA10, 2004–Ohio–3146.
B. STANDARD FOR GRANTING PERMANENT CUSTODY
{¶28} A trial court may not grant a permanent custody motion absent clear
and convincing evidence to support the judgment. The Ohio Supreme Court
defined “clear and convincing evidence” as: “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. It 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.” In
re Estate of Haynes, 25 Ohio St. 3d 101, 103–04, 495 N.E.2d 23 (1986). Accord
Schiebel, 55 Ohio St. 3d at 74.
{¶29} In reviewing whether a trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite
degree of proof.” Id.
Washington App. Nos. 12CA30 & 12CA31 14
C. PERMANENT CUSTODY PRINCIPLES
{¶30} A parent has a “fundamental liberty interest” in the care, custody, and
management of his or her child and an “essential” and “basic civil right” to raise
his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388 (1982);
In re Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990). Accord In re
D.A., 113 Ohio St. 3d 88, 2007–Ohio–1105, 862 N.E.2d 829. A parent’s rights,
however, are not absolute. Id. at ¶11. Rather, “‘it is plain that the natural rights of
a parent * * * are always subject to the ultimate welfare of the child, which is the
pole star 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). Thus, the state may terminate parental rights when a child’s best
interest demands such termination. D.A. at ¶11.
{¶31} Before a court may award a children services agency permanent
custody of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The
primary purpose of the hearing is to allow the court to determine whether the
child’s best interests would be served by permanently terminating the parental
relationship and by awarding permanent custody to the agency. R.C.
2151.414(A)(1). Additionally, when considering whether to grant a children
services agency permanent custody, a trial court should consider the underlying
principles of R.C. Chapter 2151: “(A) To provide for the care, protection, and
Washington App. Nos. 12CA30 & 12CA31 15
mental and physical development of children * * *; * * * (B) To achieve the
foregoing purpose[ ], whenever possible, in a family environment, separating the
child from its parents only when necessary for his welfare or in the interests of
public safety.”
D. PERMANENT CUSTODY FRAMEWORK
{¶32} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody
of a child to a children services agency if the court determines, by clear and
convincing evidence, that the child’s best interest would be served by the award of
permanent custody and that:
(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.
(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 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.”
Washington App. Nos. 12CA30 & 12CA31 16
{¶33} Thus, before a trial court may award a children services agency
permanent custody, it must find: (1) that one of the circumstances described in
R.C. 2151.414(B)(1) applies; and (2) that awarding the children services agency
permanent custody would further the child’s best interests.
{¶34} Pursuant to the plain language of R.C. 2151.414(B)(1)(d), when a
child has been in a children services agency’s temporary custody for twelve or
more months of a consecutive twenty-two month period, a trial court need not find
that the child cannot or should not be placed with either parent within a reasonable
time. E.g., In re T.F., 4th Dist. No. 07CA34, 2008–Ohio–1238, ¶23; In re
Williams, 10th Dist. No. 02AP–924, 2002–Ohio–7205; In re Dyal (Aug. 9, 2001),
4th Dist. No. 01CA11. Consequently, when considering a R.C. 2151.414(B)(1)(d)
permanent custody motion, the only other consideration becomes the child’s best
interests. A trial court need not conduct an R.C. 2151.414(B)(1)(a) analysis of
whether the child cannot or should not be placed with either parent within a
reasonable time. Dyal; In re Berkley, 4th Dist. Nos. 04CA12, 04CA13, and
04CA14, 2004–Ohio–4797, ¶61.
{¶35} In the case at bar, the children initially entered WCCS’s temporary
custody on October 5, 2009, pursuant to an ex parte emergency order. The court
adjudicated the children dependent and granted WCCS temporary custody on
December 9, 2009. Sixty days following the children’s removal would be
Washington App. Nos. 12CA30 & 12CA31 17
December 5, 2009. According to R.C. 2151.414(B)(1)(d), a child is considered to
enter temporary custody on the adjudication date or sixty days after the child’s
removal, whichever is earlier. Thus, for purposes of R.C. 2151.414(B)(1)(d), the
children entered WCCS’s temporary custody on December 5, 2009. WCCS filed
its permanent custody motion on March 3, 2011. Consequently, when WCCS filed
its motion, the children had been in its temporary custody for approximately fifteen
months. Accordingly, because the children had been in WCCS’s temporary
custody for more than twelve months out of a consecutive twenty-two month
period, the trial court’s only other concern became the children’s best interests and
not whether the children could or should be returned to either parent within a
reasonable time.
E. BEST INTERESTS
{¶36} R.C. 2151.414(D) requires a trial court to consider specific factors to
determine whether a child’s best interests will be served by granting a children
services agency permanent custody. The factors include: (1) the interaction and
interrelationship of the child with the child’s parents, siblings, relatives, foster
parents and 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 guardian ad litem, with due regard for the maturity of the child;
(3) the custodial history of the child; (4) the child’s need for a legally secure
Washington App. Nos. 12CA30 & 12CA31 18
permanent placement and whether that type of placement can be achieved without
a grant of permanent custody to the agency; and (5) whether any factors listed
under R.C. 2151.414(E)(7) to (11) apply.
R.C. 2151.414(E)(7) to (11) provide as follows:
(7) The parent has been convicted of or pleaded guilty to one of the
following:
(a) An offense under section 2903.01, 2903.02, or 2903.03 of the
Revised Code or under an existing or former law of this state, any other
state, or the United States that is substantially equivalent to an offense
described in those sections and the victim of the offense was a sibling of the
child or the victim was another child who lived in the parent's household at
the time of the offense;
(b) An offense under section 2903.11, 2903.12, or 2903.13 of the
Revised Code or under an existing or former law of this state, any other
state, or the United States that is substantially equivalent to an offense
described in those sections and the victim of the offense is the child, a
sibling of the child, or another child who lived in the parent’s household at
the time of the offense;
(c) An offense under division (B)(2) of section 2919.22 of the Revised
Code or under an existing or former law of this state, any other state, or the
United States that is substantially equivalent to the offense described in that
section and the child, a sibling of the child, or another child who lived in the
parent's household at the time of the offense is the victim of the offense;
(d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or
2907.06 of the Revised Code or under an existing or former law of this state,
any other state, or the United States requiring treatment of the parent was
journalized as part of a dispositional order issued with respect to the child or
an order was issued by any other court requiring treatment of the parent.
(e) A conspiracy or attempt to commit, or complicity in committing,
an offense described in division (E)(7)(a) or (d) of this section.
(8) The parent has repeatedly withheld medical treatment or food from
the child when the parent has the means to provide the treatment or food,
and, in the case of withheld medical treatment, the parent withheld it for a
purpose other than to treat the physical or mental illness or defect of the
child by spiritual means through prayer alone in accordance with the tenets
of a recognized religious body.
Washington App. Nos. 12CA30 & 12CA31 19
(9) The parent has placed the child at substantial risk of harm two or
more times due to alcohol or drug abuse and has rejected treatment two or
more times or refused to participate in further treatment two or more times
after a case plan issued pursuant to section 2151.412 of the Revised Code
requiring treatment of the parent was journalized as part of dispositional
order issued with respect to the child or an order was issued by any other
court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 2151.353
or 2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent to
those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.”
{¶37} In the case at bar, ample competent and credible evidence supports the
trial court’s decision to award WCCS permanent custody. Because appellant does
not dispute the trial court’s findings or decision with respect to the mother’s
parental rights, we focus solely upon the court’s decision with respect to
appellant’s parental rights. With respect to the first factor, the child’s interaction
and interrelationships, at the time of the hearing, appellant had not seen the
children for approximately two and one-half years, due to his incarceration. It
seems unlikely, therefore, that any strong bonds existed between appellant and the
children, especially considering that when appellant began his prison term, the
children were approximately two- and three-years old. The children had
reasonably consistent visits with their paternal grandparents. At the time of the
permanent custody hearing, the children had been living with the foster family for
Washington App. Nos. 12CA30 & 12CA31 20
over two years and had bonded with the foster family. The youngest child was just
shy of his second birthday when he entered the foster home. Thus, he has spent the
majority of his young life with the foster family, not with appellant or his mother.
The oldest child also spent a significant part of her young life with the foster
family. She was three when she entered the foster home and remained there past
her fifth birthday.
{¶38} With respect to the children’s wishes, it appears the children were too
young to directly express their wishes. The guardian ad litem remained neutral and
did not provide a firm recommendation to the court.
{¶39} Regarding the children’s custodial history, at the time of the
permanent custody hearing, they had been in WCCS’s temporary custody for over
two years. At no point during those two years did appellant have custody of the
children—obviously due to his incarceration. Throughout the majority of the two
years, the children remained in one foster home and they are bonded to the foster
family.
{¶40} At the time of the permanent custody hearing, appellant did not have a
legally secure permanent placement for the children. He claimed that he would
have one available following his release from SEPTA. However, his ability to
maintain a legally secure permanent placement for the children was unproven and
speculative. He received early release from prison, would remain on probation for
Washington App. Nos. 12CA30 & 12CA31 21
five years, and could potentially return to prison to complete the remainder of his
four-year prison term. The paternal grandparents were considered as a placement
option, but the paternal grandmother’s psychologist recommended against it.
Thus, the children needed a legally secure permanent placement and neither
appellant nor the mother was able to provide one. WCCS investigated other
relative placements but found none suitable. Consequently, the children could not
achieve a legally secure permanent placement without a grant of permanent
custody. The trial court observed that the children need stability, especially having
lived in limbo for over two years, and that the foster family was willing to adopt
the children. The trial court rationally could have determined that achieving
stability for these young children, rather than subjecting them to the uncertainty of
appellant’s care, would serve their best interests.
F. REASONABLE EFFORTS
{¶41} Appellant further argues that the trial court erred by awarding WCCS
permanent custody when WCCS did not use reasonable efforts to reunite him with
the children.
{¶42} We initially observe that appellant never argued during the trial court
proceedings that WCCS failed to use reasonable efforts to reunite the children with
him. Thus, absent plain error, appellant has waived the argument for purposes of
appeal. In re S.C., 4th Dist. No. 09CA798 and 09CA799, 2010-Ohio-3394, ¶¶39-
Washington App. Nos. 12CA30 & 12CA31 22
41; In re T.S., 8th Dist. No. 92816, 2009-Ohio-5496, ¶17; In re Slider, 160 Ohio
App.3d 159, 2005-Ohio-1457, 826 N.E.2d 356, ¶11 (4th Dist). Plain error exists
when the court obviously deviated from a legal rule and when that deviation
affected the outcome of the trial. State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, ¶16; State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d
1240 (2002). In the case at bar, the trial court did not obviously deviate from a
legal rule that affected the outcome of the case.
{¶43} R.C. 2151.419 does not require a trial court to enter a reasonable
efforts finding when ruling on a R.C. 2151.413 permanent custody motion. In re
C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 43. Moreover, “the
procedures in R.C. 2151.414 do not mandate that the court make a determination
whether reasonable efforts have been made in every R.C. 2151.413 motion for
permanent custody.” Id. at ¶ 42, 862 N.E.2d 816. Nevertheless, the agency must
establish that it made such efforts prior to the termination of parental rights. Id.
{¶44} In the case at bar, WCCS filed its permanent custody motion under
R.C. 2151.413. Throughout the proceedings below, the trial court made several
findings that WCCS used reasonable efforts to prevent the children’s continued
removal from the home. It did not, therefore, need to make an additional
reasonable efforts finding when it issued its permanent custody decision.
Washington App. Nos. 12CA30 & 12CA31 23
{¶45} Furthermore, WCCS did not engage in any case planning services or
seek reunification with appellant because when the children entered WCCS’s
temporary custody, appellant was subject to a four-year prison term, which made it
impossible to provide meaningful case planning services and to attempt
reunification with appellant. In re S.D., 10th Dist. Nos. 08AP-546 and 08AP-575,
2009-Ohio-1047, ¶14 (“Under the circumstances, [the parent’s] criminal conduct
had made it difficult, if not impossible, for FCCS to provide meaningful
services.”); In re A.D., 2nd Dist. No. 2007CA23, 2008-Ohio-2070, ¶8 (“Although
[children services’] efforts were directed solely toward [the mother], such an
approach was reasonable considering that [the father] was incarcerated when the
children entered temporary custody and would remain incarcerated for another two
and one-half years.”). Thus, at the time the children entered WCCS’s temporary
custody, appellant had no chance of being reunified with the children for nearly
four years. In re A.D. at ¶8. This court previously has relived a children services
agency of the duty to use reasonable efforts when those efforts would be futile. In
re Keaton, 4th Dist. Nos. 04CA2785, 04CA2788, 2004-Ohio-6210, ¶ 69, citing In
re Harmon, Scioto App. No. 00CA2693 (Sept. 25, 2000). Obviously, when a
parent is imprisoned, reunification is futile until the parent is released and obtains a
stable home. Thus, because appellant was incarcerated when WCCS obtained
Washington App. Nos. 12CA30 & 12CA31 24
temporary custody and remained incarcerated up until it filed for permanent
custody, reunification with appellant would have been futile.
{¶46} Accordingly, based upon the foregoing reasons, we overrule
appellant’s second assignment of error and affirm the court’s judgment.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶47} In his third assignment of error, appellant asserts that trial counsel was
ineffective for failing to advise the grandparents to seek custody of the children
and for failing to recognize that appellee did not have a legal duty to consider
placing the children with the grandparents before seeking permanent custody.
{¶48} 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
counsel. In re Wingo, 143 Ohio App. 3d 652, 666, 758 N.E.2d 780 (2001), citing In
re Heston (1998), 129 Ohio App. 3d 825, 827, 719 N.E.2d 93. “‘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.’” Id., quoting Heston.
{¶49} To reverse a trial court’s judgment based upon a claim of ineffective
assistance, the defendant must show, first, that counsel’s performance was
deficient and, second, that the deficient performance prejudiced the defense so as
Washington App. Nos. 12CA30 & 12CA31 25
to deprive the defendant of a fair trial. 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, 65,
781 N.E.2d 88 (2002); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373
(1989). Both prongs of this test need not be analyzed, however, if a claim can be
resolved under one prong. State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d
52 (2000); State v. Loza, 71 Ohio St. 3d 61, 83, 641 N.E.2d 1082 (1994).
{¶50} Counsel’s performance may be found to be deficient if counsel “made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687; Bradley, paragraph two of the
syllabus (stating that counsel’s performance is deficient if it falls below an
objective standard of reasonable representation); State v. Peeples, 94 Ohio App. 3d
34, 44, 640 N.E.2d 208 (1994) (stating that counsel’s performance is deficient if it
“raise[s] compelling questions concerning the integrity of the adversarial
process”). To establish prejudice, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.” Bradley, paragraph two of the syllabus; Strickland,
466 U.S. at 687; Noling; Bradley, paragraph three of the syllabus (“To show that a
defendant has been prejudiced by counsel’s deficient performance, the defendant
must prove that there exists a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.”). When an appellate court
Washington App. Nos. 12CA30 & 12CA31 26
considers an ineffective assistance of counsel claim, the court “‘will not presume
prejudice but will require an affirmative showing thereof.’” In re Z.S., 4th Dist. No.
10CA16, 2010–Ohio–5038, ¶35, quoting Matter of Shelton, Highland App. No.
818 (Mar. 16, 1993).
{¶51} In the case at bar, we cannot state that trial counsel rendered
ineffective assistance of counsel. To the contrary, appellant’s counsel vigorously
defended appellant’s parental rights. We do not know of any requirement that a
parent’s attorney must advise a relative to seek permanent custody when the parent
faces the loss of parental rights. Even if we could state that a parent’s counsel’s
failure to advise a non-party about filing a motion for custody constituted deficient
performance, in the case at bar, we do not find any prejudice. The record
demonstrates that the paternal grandmother suffered or suffers from some mental
health issue that caused her treatment provider to recommend that WCCS not place
the children with the paternal grandparents. There is no evidence in the record that
this recommendation ever changed. Thus, even if appellant’s counsel had advised
the grandparents to file a custody motion, it is purely speculative—if not highly
unlikely—to think that the trial court would have awarded them custody.
Consequently, appellant cannot demonstrate prejudice.
{¶52} Appellant additionally asserts that counsel was ineffective for failing
to recognize that the trial court did not have a duty to consider relative placement
Washington App. Nos. 12CA30 & 12CA31 27
before awarding WCCS permanent custody. Even if this could amount to deficient
performance, appellant has not offered a logical reason how such allegedly
deficient performance prejudiced him.
{¶53} Accordingly, based upon the foregoing reasons, we overrule
appellant’s third assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Washington App. Nos. 12CA30 & 12CA31 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellant 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
Washington County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding 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.