In re M.W.

[Cite as In re M.W., 2012-Ohio-5075.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 98214 and 98215
IN RE: M.W. and Mi.W.
Minor Children
[Appeal by Mother]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD 10908339 and AD10908340
BEFORE: Sweeney, P.J., S. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT
John H. Lawson
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEY FOR APPELLEE
Michelle A. Myers
Assistant County Prosecutor
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, Ohio 44144
JAMES J. SWEENEY, P.J.:
{¶1} Appellant, T.W. (“Mother”) appeals from the juvenile court’s order that
granted the Cuyahoga County Department of Children and Family Service’s (“CCDCFS”)
motion for permanent custody relating to Mother’s children, M.W and Mi.W. For the
reasons that follow, we affirm.
{¶2} CCDCFS opened this case in August 2006 due to Mother testing positive
for marijuana and PCP at M.W.’s birth. A case plan was established and, after an initial
relapse, Mother completed an intensive outpatient treatment program in February 2007
and the case was closed in July 2007.
{¶3} The case was re-opened when Mother tested positive again for marijuana
and PCP at the birth of Mi.W. on May 8, 2010. At that time, Mother was financially
unstable and reported that her drug use was caused by depression. The children, M.W.
and Mi.W., were both removed from Mother’s custody at that time and a case plan was
established in June 2010.
{¶4} The permanency plan was for reunification with Mother. Mother’s case
plan included substance abuse, mental health services, financial stability, housing, and
paternity. There have been no significant amendments to the plan since its inception.
{¶5} Mother has a history of drug abuse, beginning at the age of 13 years old.
She has abused drugs while pregnant with both M.W. and Mi.W. Both children have
been diagnosed with adjustment disorder and both require weekly therapy for behavioral
issues. The children have been in the care of their maternal great uncle since being
removed from Mother’s custody. According to the social worker, the children are very
bonded to this relative who places their needs first. Maternal great uncle has foregone
career opportunities to care for the children and actively participates in their schooling
and therapy. Further, maternal great uncle has cooperated, facilitated, and encouraged
the children’s parents to visit them during the course of the custody proceedings.
{¶6} Mother has participated in family drug court and has made numerous
attempts at drug rehabilitation. Mother has been unable to maintain sobriety despite
involvement and referrals to numerous intensive inpatient and outpatient programs.
Mother also received two referrals for mental health services due to her depression. She
was not able to obtain an appointment at either location and has, therefore, not been able
to address the mental health component of her case plan.
{¶7} By February 2012, Mother was pregnant again and admitted to having used
both marijuana and PCP in November 2011 and January 2012. Mother declined the
social worker’s offer to make further referrals and indicated she felt she could maintain
sobriety on her own. But for brief employment at a Convenient Store, Mother has not
been able to maintain a job. Mother has not satisfied the financial stability component of
the case plan.
{¶8} Mother has addressed the housing and paternity components of the case
plan.
{¶9} M.W.’s father and Mi.W.’s father have not satisfied their case plan
objectives.
{¶10} The social worker spoke with Mother on a weekly basis of the need to
address the case plan issues. Mother did not fully comply with the urine screen
requirements but was consistent with attending 12-step meetings. Mother did attend
visitation, but did not take advantage of available opportunities to see her children more
often at her uncle’s home. This may have been due to transportation difficulties.
{¶11} The testimony indicates that the longest period that Mother has been able
to maintain sobriety was a five-month period.
{¶12} The guardian ad litem recommended that CCDCFS’ motion for permanent
custody be granted in order to establish some permanency for the children.
{¶13} CCDCFS filed its complaint in May 2010. CCDCFS was granted
emergency custody. On May 18, 2010, Mother signed a 90-day statutory time waiver.
She signed additional documents that day, including a drug court contract and a consent
for release of confidential information. These documents were later executed by
Mother’s attorney and the drug court team. Mother waived service.
{¶14} CCDCFS was granted temporary custody on September 8, 2010, upon the
court’s finding that the children were neglected and dependent.
{¶15} Mother attended numerous drug court hearings, was discharged from the
program in April 2006, however, continued to attend hearings after being discharged.
{¶16} Upon CCDCFS’ motion, the court extended the order of temporary
custody to December 27, 2011.
{¶17} CCDCFS moved for permanent custody on July 12, 2011 and the hearing
on the motion took place on March 8, 2012. The court granted CCDCFS’ motion on
March 19, 2012.
{¶18} Mother appeals advancing four assignments of error for our review.
ASSIGNMENT OF ERROR I:
The trial court erred in failing to dismiss the agency’s motion for permanent
custody pursuant to O.R.C. 2151.414(A)(2).
{¶19} Appellant asserts that the court should have dismissed the motion for
permanent custody because the trial court did not commence the hearing within 200 days
after the motion was filed. CCDCFS counters that no error occurred, arguing that the
statutory time periods are not jurisdictional and can be implicitly or expressly waived by a
party.
{¶20} R.C. 2151.414(A) provides:
(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.
(Emphasis added)
{¶21} The final paragraph of R.C. 2151.414(A)(2) establishes that the statutory
time limits set forth in the first paragraph do not deprive the juvenile court of authority or
jurisdiction to issue an order beyond those time frames. The trial court is expressly
directed to issue an order “not later than two hundred days after the agency files the
motion.” However, the legislature has explicitly provided that the trial court’s failure to
comply with the time limits “does not affect the authority of the court to issue any order *
* * and does not provide any basis for attacking the jurisdiction of the court or the validity
of any order of the court.” Courts have consistently rejected the argument that Mother
advances here and she has offered us no decisional authority that has reached the contrary
result. E.g., In re M.W., 2008-Ohio-4499, ¶ 24, citing In re S.H., 9th Dist. No. 24055,
2008-Ohio-3111, at ¶ 32; In re Allbery, 4th Dist. No. 05CAl2, 2005-Ohio-6529, at ¶ 27;
In re Joseph P., 6th Dist. No. L-02-1385, 2003-Ohio-2217, at ¶ 50.
{¶22} This court has previously determined that similar statutory time limitations
language contained in R.C. 2151.353(F) is “directory rather than mandatory because they
exist for the assurance of the prompt resolution of child custody matters rather than as a
jurisdictional prerequisite to custody determinations[.]” In re E.M., 8th Dist. No. 79249,
2001 Ohio App. LEXIS 5011, at *24-25 (Nov. 8, 2001). In that case, we held that “the
remedy for a party aggrieved by a judge’s delay is to petition an appellate court for a writ
of procedendo to compel the execution of his statutory duty. Failure to do so at the trial
level constitutes a waiver of that issue for purposes of appeal.” ( Id. Other citations
omitted.) That reasoning applies with equal force here.
{¶23} Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR II:
Appellant/mother’s legal counsel representation was ineffective and below
objective standards of reasonableness, and thus prejudiced the mother’s
rights.
{¶24} To substantiate a claim of ineffective assistance of counsel, a defendant
must demonstrate that (1) the performance of defense counsel was seriously flawed and
deficient, and (2) the result of defendant’s trial or legal proceeding would have been
different had defense counsel provided proper representation. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 25 Ohio St.3d 144,
495 N.E.2d 407 (1986). In State v. Bradley, the Ohio Supreme Court truncated this
standard, holding that reviewing courts need not examine counsel’s performance if the
defendant fails to prove the second prong of prejudicial effect. State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989). “The object of an ineffectiveness claim is not to
grade counsel’s performance.” Id. at 143, 538 N.E.2d 373.
{¶25} Prejudice exists when “the result of the trial would have been different” but
for counsel’s ineffectiveness. Id. at paragraph three of the syllabus. Courts must always
recall that properly-licensed counsel is presumed competent, Vaughn v. Maxwell, 2 Ohio
St.2d 299, 301, 209 N.E.2d 164 (1965); and, that trial counsel must be afforded deference
regarding trial strategy. State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805
N.E.2d 1042, ¶52.
{¶26} Mother identifies six areas she believes her counsel was ineffective: (1)
not lodging an objection to the same judge presiding over Mother’s drug court hearings
and permanent custody hearing; (2) allegedly not being present during “crucial points of
the proceedings” where Mother waived rights to due process; (3) allegedly failing to
safeguard Mother’s right to confidentiality regarding substance abuse issues and mental
health issues; (4) not objecting to Mother’s participation in drug court before the court
obtained jurisdiction over her and not providing adequate advice to Mother regarding
attendance at drug court hearings; (5) failing to seek dismissal of the CCDCFS’
permanent custody motion for failure of service; and (6) failing to seek dismissal of the
CCDCFS’ permanent custody motion for failure to hold a hearing within the statutory
time period.1
{¶27} Despite her allegations, Mother has not established that but for any or all
of the above alleged failings of counsel, the outcome of the permanent custody
Based on our resolution of the first assignment of error, counsel did not
1
render ineffective assistance by not moving to dismiss based on the hearing being
held outside the statutory time period.
disposition would have been any different. Her ineffective assistance of counsel claim
fails accordingly. Additionally, Mother has not established that her counsel’s performance
was seriously flawed or deficient in any case.
{¶28} Mother’s first allegation is premised upon her belief that the trial court
judge should have recused herself on the basis that she also presided over Mother’s drug
court hearings. From that, Mother argues that counsel was therefore ineffective for not
moving for the judge’s disqualification. This contention is not supported by the record.
It is well settled that a “judge need not recuse himself [or herself] on the basis that he [or
she] acquired knowledge of the facts during a prior proceeding.” In re: Daniel E., 122
Ohio App.3d 139, 701 N.E.2d 408 (1997), citing, State v. D’Ambrosio, 67 Ohio St.3d
185, 188, 616 N.E.2d 909 (1993). Information learned by a judge in his/her judicial
capacity, even from other proceedings, are considered judicial observations and does not
create a personal bias that would require recusal. Id. Mother does not point to any
evidence of personal bias exhibited by the judge in this record. Instead Mother contends
there is an inherent conflict due to the same jurist presiding in both courts. The mere fact
that the same judge presided over both the permanent custody proceedings and Mother’s
drug court hearings, without more, does not require the judge to disqualify herself, nor
does it require counsel to file a motion for disqualification on that basis. Moreover, the
evidence of Mother’s drug history was relevant to the custody matter as it was the reason
for the removal of the children from her custody. Evidence of Mother’s rehabilitation
efforts was introduced at the hearing.
{¶29} Next, Mother asserts that she entered a drug court contract and drug court
waiver allegedly without the benefit of having her public defender review and explain
them to her. Mother bases the contention on the fact that her attorney executed the
contract and waiver 16 days after she did. The record indicates, however, that Mother
appeared with counsel on May 12, 2010 where the court addressed the matter of drug
court. The parties discussed that the case was “going to drug court” and the court
appointed the public defender to represent Mother at that time. The court further
scheduled another hearing in the event the case was not accepted into drug court.
Mother signed the drug court contract and waiver on May 18, 2010, while she was
represented by counsel, who also signed the contract and waiver at a later date. Mother
does not point to any requirement that her attorney execute the documents on the same
day as her, although this is the preferable and most sensible practice. What is most
significant is that counsel did sign the documents. We note that the drug court
judge/magistrate signed them on the same day as Mother’s counsel. There is no
authority that would indicate the drug court contract and waiver were rendered void
simply because Mother did not “reaffirm” and re-sign them on the same date her attorney
executed them. It is significant that none of the documents were acknowledged by the
court until after counsel had also executed them. Without any admissible evidence to the
contrary, we cannot speculate or infer from the record that Mother’s attorney failed to
review or explain the contract and waiver to her simply because they signed them on
different dates. Mother does not point to any objection or any statements by her in this
record to even support that contention.
{¶30} Mother’s contention that her counsel was ineffective because the court
“ordered” her to participate in the family drug court program before it had jurisdiction
over her is not supported by the record. The record establishes participation in the
program is voluntary. Mother was advised by the judge that she may or may not be
accepted into the program. Mother was represented by counsel throughout these
proceedings. The fact that counsel did not object to Mother’s participation in the family
drug court program was a reasonable strategy where Mother was attempting to satisfy the
objectives of her case plan and achieve reunification with her children, which included a
substance abuse component.
{¶31} Next, Mother contends her counsel was ineffective by failing to advise her
about continued attendance at drug court after allegedly being terminated from the
program on April 6, 2011. Mother suggests this resulted in her “mental health and
substance abuse” records being “available to all to be used against her.” Mother asserts
that she attended eight hearings after being discharged until June 29, 2011. The State
contends that counsel was not ineffective because Mother was not terminated from the
drug court program until July 6, 2011. The journal entry dated April 6, 2011 does
indicate that “Mother is to continue in drug court.” The transcript from the April 6, 2001
proceedings further confirms that Mother was not discharged from the drug court
program that day. Numerous journal entries after that date also provide that “Mother is to
continue in drug court.” The journal entry dated July 20, 2011, reflects that CCDCFS
entered an oral motion requesting that this matter be discharged from drug court, counsel
for mother objected, and the trial court granted CCDCFS’ motion and discharged mother
from the drug court program. That order was signed by the judge on July 13, 2011.
{¶32} Mother argues that her counsel should have sought dismissal because she
was not served with the permanent custody motion and contends her waiver of service is
invalid. Mother has submitted supplemental authority urging us to extend the Ohio’s
Supreme Court’s recent decision regarding the validity of a juvenile’s waiver of his/her
right to an amenability hearing to apply in the context of a parent’s waiver of service of
process in custody proceedings. State v. D.W., Slip Opinion No. 2012-Ohio-4544. We
decline to do so.
{¶33} The Ohio Supreme Court addressed the due process rights implicated
by a parent’s right to service of process in custody proceedings in In re
Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875 N.E.2d 582, and
stated: Our courts have long recognized that due process requires
both notice and an opportunity to be heard. In [Mullane], the United States
Supreme Court enunciated the standard for determining whether service of
process comports with due process, holding: “An elementary and
fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.”
In accordance with this requirement, the government must attempt to
provide actual notice to interested parties if it seeks to deprive them of a
protected liberty or property interest. However, due process does not
require that an interested party receive actual notice. Moreover, while
“[t]he means employed must be such as one desirous of actually informing
the absentee might reasonably adopt to accomplish it,” due process does not
require “heroic efforts” to ensure the notice’s delivery.
Id., ¶ 13-14, quoting, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314-315, 70 S.Ct. 652, 94 L.Ed. 865 (1950), other citations omitted.
{¶34} Where a party actually has notice of the hearing, appears for the hearing
represented by counsel, and had a full opportunity to defend herself against the motion,
the party cannot “demonstrate that any alleged defect in service of the motion impacted
her right to due process or prejudiced her in any way.” In re D.T., 9th Dist. No. 26344,
2002-Ohio-3552. In this case, Mother not only appeared at the hearing with counsel, but
also waived any defects in service. Mother has not demonstrated any defect in service that
impacted her right to due process or prejudiced her in any way. Consequently, counsel
was not ineffective in this regard.
{¶35} This assignment of error is overruled.
ASSIGNMENT OF ERROR III:
The trial court erred in granting the agency’s motion for permanent custody
as the goals set in the agency’s case plan that were adopted by the court
were impossible to complete within the time frame set forth.
{¶36} Mother contends that it was impossible for her to satisfy the requirements of
her case plan due to the severity of her underlying addiction and an alleged inability to
access mental health care due to the mental health provider’s “back log of cases.”
Counsel makes cogent arguments on Mother’s behalf with respect to her inability to
obtain mental health treatment. However, the record amply documents that Mother’s
failures in the case plan were with respect to her inability to maintain sobriety for any
significant period despite being afforded a substantial amount of time and receiving
numerous referrals and services.
[N]eglected and dependent children are entitled to stable, secure, nurturing
and permanent homes in the near term, are not required to “languish” in
legally insecure placements for years while natural parents are unwilling or
unable to correct serious parenting deficiencies, and their best interest is the
pivotal factor in permanency case.
In re T.S., 2009-Ohio-5496, ¶ 36. The court specifically found that Mother’s chemical
dependency is so severe that she is unable to provide an adequate permanent home for
these children. Both children have behavioral problems that require weekly therapy.
They are very bonded to their relative who has custody of them and who attends to their
needs. The trial court’s finding that these children could not be placed with their Mother
within a reasonable time, is supported by the record evidence. While we are sympathetic
to Mother’s efforts towards rehabilitation, and the difficulties that accompany that
process, the juvenile court did not err by granting the CCDCFS’ motion for permanent
custody in this case.
{¶37} This assignment of error is overruled.
ASSIGNMENT OF ERROR IV
The trial court’s failure to raise the issue of the inherent conflict of having
the same jurist preside over the matters in drug court and in the adjudication
of parental rights resulted in reversible error.
{¶38} As set forth previously in this opinion, a “judge need not recuse himself [or
herself] on basis that he [or she] acquired knowledge of the facts during a prior
proceeding.” In re: Daniel E., 122 Ohio App.3d 139, 701 N.E.2d 408 (6th Dist.1997),
citing, State v. D’Ambrosio, 67 Ohio St.3d 185, 188, 616 N.E.2d 909 (1993). Further,
we have found no evidence in this record that would have supported a motion to
disqualify the judge based on the mere fact that she presided over Mother’s drug court
hearings. This assignment of error is overruled.
{¶39} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR