In re S.A.

[Cite as In re S.A., 2014-Ohio-3063.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

IN RE: : Appellate Case Nos. 25994
: Appellate Case Nos. 26001
S.A., T.M. and S.A. :
: Trial Court Case Nos. JC 2009-10601
: Trial Court Case Nos. JC 2011-728
: Trial Court Case Nos. JC 2012-913
:
: (Juvenile Appeal from Montgomery
: (County Juvenile Court)
:
...........

OPINION

Rendered on the 11th day of July, 2014.

...........

MATHIAS H. HECK, JR., by TIFFANY C. ALLEN, Atty. Reg. #0089369, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee

ROBERT L. SCOTT, Atty. Reg. #0086785, 8801 North Main Street, Suite 200, Dayton,
Ohio 45415
Attorney for Appellant, E.M.

JAMES C. STATON, Atty. Reg. #0068686, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Appellant, T.A.

.............

FAIN, J.
[Cite as In re S.A., 2014-Ohio-3063.]
{¶ 1} E.M. (Mother) and T.A. (Father) appeal from an order of the Montgomery

County Court of Common Pleas, Juvenile Division, awarding permanent custody of their

children, S.A., T.M. and S.A. to Montgomery County Children’s Services (MCCS). 1

Mother contends that the Juvenile Court erred in finding that the children cannot be placed

with her within a reasonable time, that she was denied the effective assistance of counsel,

and that the court erred in the admission of evidence of her sexual relationship with her own

father. Father contends that the order is not supported by the evidence.

{¶ 2} We conclude that the court did not abuse its discretion in determining that the

probative value of the admission of the evidence at issue outweighed its prejudicial effect.

We further conclude that there is sufficient evidence upon which the court could rely in

finding that the children could not be placed with their parents within a reasonable time and

in finding that an award of permanent custody to MCCS is in the best interest of the

children. Accordingly, the order of permanent custody is Affirmed.

I. The Situation of the Family

{¶ 3} Mother and Father are the natural parents of S.A.-1, born November 21, 2009,

T.M, born January 27, 2011, and S.A.-2, born February 6, 2012. S.A.-1 has vision issues

including lazy eye and farsightedness for which she receives treatment. T.M. is

developmentally delayed and receives physical, occupational and speech therapy for his

condition. S.A.-2 has significant medical problems including macroencephaly and heart

blockage.

1
For ease of reference, wWe will refer to the two children with identical initials as S.A.-1 and S.A.- 2.
[Cite as In re S.A., 2014-Ohio-3063.]

{¶ 4} MCCS established a case plan for the parents as early as April 2010. The

plan was discussed with the parents on numerous occasions, and the parents admit that they

were aware of the plan’s requirements. The case plan required the parents to maintain

stable housing and income; complete a parenting and psychological assessment and comply

with any treatment recommendations; complete a visitation assessment and parenting

classes; maintain regular visitation and attend the children’s medical appointments; and

engage in counseling.

{¶ 5} Psychological examination and testing by Richard Bromberg, a clinical

psychologist, revealed that both parents have significant cognitive impairment. Father reads

at a fourth-grade level with a low average intellect, while Mother reads at a second-grade

level and has a below average intellectual functioning, with difficulty in memory,

concentrating, thinking, and decision-making. Both parents also have mental health issues.

Father has bi-polar personality disorder, with violent, aggressive, antisocial, physical abuse,

and substance abuse traits. His testing indicated that he has a dysfunctional method of

parenting and a high likelihood of committing child abuse. Mother suffers from anxiety,

and exhibits “almost delusional” paranoid ideation. Tr. p. 75. She also exhibits traits

indicating a substantial likelihood of committing child abuse. Both parents were abused as

children. Bromberg opined that Father’s view of parenting as a great stressor indicated that

he would have difficulty in parenting and that he would need to engage in ongoing parenting

education. Bromberg opined that Mother was not capable of independently parenting the

children. “Aggressive” treatment, including medication, was recommended for Father for a

minimum of one year. Id. at 64. Bromberg recommended that Mother receive intensive
 4

weekly group and individual counseling for at least twelve months, but noted that her need

for treatment would be lifelong. He also recommended that she be evaluated by a

psychiatrist for the administration of medication.

{¶ 6} Father did not engage in any treatment after Bromberg’s examination.

Althoiugh Mother had been engaged in counseling for several years, her psychological and

cognitive impairment did not improve, and she did not comply with recommendations for

obtaining medications.

{¶ 7} Psychologist, Gordon Harris, also evaluated both parents, and testified on

their behalf at the disposition hearing. Harris acknowledged that Mother was not capable of

independently parenting the children. He opined that he did not observe any “significant

psychopathologies” in Father, but did note that Father demonstrates “unrealistic perceptions”

that sometimes cause him to reach “erroneous conclusions.” Id. at 470. Harris testified

that during the family session the children and Father appeared bonded and that Father’s

“interactions with the children were fairly appropriate.” Id. at 469. However, he stated

that he felt that Father was “putting on a display” to “look like a good parent.” Id. Harris

testified that Father does have the capacity to make reasonable decisions. But Harris

admitted that in order to parent the children, Father would need help from a support system,

as well as ongoing counseling. Harris stated that Father would require “substantial

assistance to meet the needs of [the two children with serious medical needs].” Id. at 486.

{¶ 8} The parents did not have housing at the time of S.A.-1's birth. They

subsequently obtained housing, but caseworkers found animal feces throughout the kitchen,

and an infestation of bed bugs. The parents moved from that home into a residence on
 5

Wyoming Avenue, where they were living at the time of the hearings. According to

caseworkers, the home was cleaner. However, there was evidence that the Wyoming

Avenue home was infested with bedbugs. The parents receive about $1,000 per month in

Social Security Disability, and Father brings in an unknown amount of income from various

jobs. They still have issues with meeting their rent and utility payments. The home had no

heat at the time S.A.-2 was born in February.

{¶ 9} There is also evidence that Father permitted numerous individuals to reside

in the home. Mother described one individual as homeless. Father’s brother, a sexually

oriented offender, was also observed in the home during two home visits by the caseworker

and Guardian Ad Litem, despite the fact that the parents knew he was not to be in the home.

Father admitted that his brother stayed in the home for fourteen days following an injury in

2011. The children were present during that time. The agency, which had just begun trial

visitations in the home, stopped the home visitations and returned visitations to the agency

premises. Thereafter, Father obtained a temporary restraining order against his brother, but

the order expired prior to the final hearing. The agency workers also addressed the need to

exclude other individuals from living in the home. This issue was not resolved at the time

of the hearing.

II. The Course of Proceedings

{¶ 10} MCCS became involved with the family upon S.A.-1's birth, because the

parents lacked stable housing and had mental health issues. T.M. and S.A.-2 were each

taken into custody by MCCS from birth. All three children were eventually adjudicated
 6

dependent. MCCS moved for permanent custody in 2011 with regard to S.A.-1 and T.M.,

and in 2012 with regard to S.A.-2. A dispositional hearing was held on several dates in

June, August and September of 2012.

{¶ 11} Following the hearing, the magistrate entered a decision, dated November

2, 2012, awarding permanent custody of all three children to MCCS. Both Mother and

Father filed objections, separately, which were overruled by the Juvenile Court on October

18, 2013. Mother and Father have filed separate appeals which were consolidated by order

of this court dated January 17, 2014.

III. There Is Sufficient Evidence in the Record to Support the Award

of Permanent Custody to Montgomery County Children’s Services

{¶ 12} In Mother’s First Assignment of Error and Father’s sole assignment of error

they each contend that the evidence in the record does not support the award of permanent

custody to MCCS:

THE TRIAL COURT’S FINDING [MOTHER’S] CHILDREN

CANNOT BE PLACED WITH HER WITHIN A REASONABLE TIME IS

NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

THE TRIAL COURT ERRED TO [FATHER’S] PREJUDICE

WHEN IT GRANTED PERMANENT CUSTODY.

{¶ 13} Mother contends that the finding that the children cannot be placed with her

within a reasonable time is not supported by the record. In support, she argues that she had

“established a safe, appropriate household,” had engaged in counseling, and had attended all
 7

visitation sessions. Father contends that the evidence supports a finding that reunification

within a reasonable time is possible, and that reunification is in the best interest of the

children.

{¶ 14} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute requires

the court to find, by clear and convincing evidence, that: (1) granting permanent custody of

the child to the agency is in the best interest of the child; and (2) either the child (a) cannot

be placed with either parent within a reasonable period of time or should not be placed with

either parent if any one of the factors in R.C. 2151.414(E) are present; or (d) has been in the

temporary custody of one or more public or private children services agencies for twelve or

more months of a consecutive twenty-two month period. R.C. 2151.414(B)(1); In re S.J., 2d

Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga

No. 98545, 2012-Ohio-6010, ¶ 8.

{¶ 15} The statutory best-interest factors include, but are not limited to: (1) the

interaction and interrelationship of the child with the child's parents, relatives, foster parents

and any other person who may significantly affect the child; (2) the wishes of the child; (3)

the custodial history of the child; and (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. R.C. 2151.414(D)(1).

{¶ 16} When determining whether a child can be placed with his natural parents

within a reasonable time, the trial court must look to R.C. 2151.414(E), which provides a list

of factors to consider. If the trial court finds from all relevant evidence that one or more of

these factors exist, it then must consider whether permanent commitment is in the best
 8

interest of the child. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996). These

factors include:

(1) Following the placement of the child outside the child's home and

notwithstanding reasonable case planning and diligent efforts by the agency

to assist the parents to remedy the problems that initially caused the child to

be placed outside the home, the parent has failed continuously and repeatedly

to substantially remedy the conditions causing the child to be placed outside

the child's home. In determining whether the parents have substantially

remedied those conditions, the court shall consider parental utilization of

medical, psychiatric, psychological, and other social and rehabilitative

services and material resources that were made available to the parents for the

purpose of changing parental conduct to allow them to resume and maintain

parental duties.

(2) Chronic mental illness, chronic emotional illness, mental

retardation, physical disability, or chemical dependency of the parent that is

so severe that it makes the parent unable to provide an adequate permanent

home for the child at the present time and, as anticipated, within one year

after the court holds the hearing pursuant to division (A) of this section or for

the purposes of division (A)(4) of section 2151.353 of the Revised Code;

***

(4) The parent has demonstrated a lack of commitment toward the

child by failing to regularly support, visit, or communicate with the child
 9

when able to do so, or by other actions showing an unwillingness to provide

an adequate permanent home for 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.

R.C. 2151.414(E).

{¶ 17} A trial court's decision on termination “will not be overturned as against the

manifest weight of the evidence if the record contains competent, credible evidence by

which the court could have formed a firm belief or conviction that the essential statutory

elements for a termination of parental rights have been established.” (Citations omitted.) In

re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. “[I]ssues relating to the

credibility of witnesses and the weight to be given the evidence are primarily for the trier of

fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22. The “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.” Seasons
 10

Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J .Y., 2d

Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.

{¶ 18} The magistrate found that the parents had not completed their case plan

objectives, and had thereby failed to remedy the issues that caused the removal of the

children. Specifically, the magistrate found that Father had failed to comply with

treatment recommendations, and that although Mother had engaged in counseling, she had

not progressed. Father argues that the testimony of Dr. Harris indicates that he is capable of

parenting, and that it should have been afforded greater weight. The magistrate found the

testimony of Dr. Bromberg, the clinical psychologist who tested and examined both parents

regarding their cognitive limitations and mental health issues “very credible,” and

specifically found that Dr. Bromberg’s assessment was “more thorough and complete” than

that of Dr. Harris.

{¶ 19} The magistrate further found that Father’s propensity to permit numerous

individuals to stay in the residence, including his brother, and Mother’s failure to stop this

behavior, demonstrates that the parents’ housing situation is not stable. While Father denies

permitting others in the home, he did admit that his brother and another man stayed at the

home at different times. Father admitted that, despite being aware of the need to keep his

brother away from the children, he permitted his brother to live with him for fourteen days,

while he had home visitation with the children. Father did obtain a temporary protective

order restraining the brother from coming to the house, but that was after visitations were

returned to agency premises. Furthermore, the restraining order had expired by the time of

the hearing, and Father did not indicate an intent to seek another order. There is also

evidence in the record that Father indicated to agency workers that he disagreed with the

agency’s view that there was a need to keep his brother away from his children.
 11

{¶ 20} The magistrate noted that neither parent had complied with the requirement

that they attend medical appointments with the children. As the magistrate stated, the

parents “need to fully comprehend the serousness of the medical issues and the appropriate

treatments for T.M. and S.A.-2.” The record supports a finding that while the parents were

aware of the appointments, they failed to attend the majority of appointments.

{¶ 21} There is also evidence in the record upon which the trial court could rely in

finding that Father and Mother do not have any support system or persons who would be

capable of helping them parent the children. Father insists that his mother could help them

with parenting. But there was evidence that Father was abused as a child, rendering his

mother unsuitable. Father noted that his ex-girlfriend could help. When it was noted that

the girlfriend had a disability, Father then stated that the girlfriend’s daughter and sister

could help her. Finally, Father argued that his brother’s daughter could aid them in

parenting. But the daughter, who is eighteen, resides with the sexual offender brother, and

she has a significant physical disability. We conclude that there is no error in the trial

court’s conclusion that the parents do not have a support system to help them parent.

Significantly, both parents refused to take additional parenting classes, despite Dr.

Bromberg’s recommendations, and the testimony of the agency workers that the parents did

not exhibit any progress from the prior parenting class.

{¶ 22} We conclude that there is evidence in this record to support the trial court’s

finding that the parents failed to complete their case plan and remedy the issues related to

removal. There is also evidence in the record that the agency did make available to the

parents services aimed at helping them meet the case plan goals. MCCS provided referrals

to counseling, parenting classes and psychological assessments. The agency also provided
 12

transportation, and monitored three-hour visits two days per week. The agency attempted to

transition to in-home visits, but the discovery that Father’s brother was permitted to live in

the house caused the home visitation to be revoked.

{¶ 23} There is also evidence in the record to support the trial court’s finding that

the parents have significant chronic psychological impairments, which they have not

addressed. There is unrebutted evidence that Mother is not capable of independently caring

for the children. There is also evidence that Father is currently unable to meet the daily

needs of the children, and would need to undergo at least one year of aggressive treatment

and develop a strong support system before he would be able to parent.

{¶ 24} There is also evidence upon which the trial court could rely in finding that

Father has displayed a lack of commitment toward the children by failing to regularly visit,

by sleeping during numerous visits, and by failing to attend the children’s medical

appointments.

{¶ 25} We conclude that the record includes ample evidence to support the trial

court’s finding that the children cannot be returned to either parent within a reasonable time,

due to the parents’ lack of compliance with the case plan, but also due to their mental

impairments.

{¶ 26} The evidence in the record also supports a finding that awarding

permanent custody to MCCS is in the best interest of the children. It is clear from this

record that the parents love their children, and are bonded to them. But it is also clear from

the record the parents lack basic knowledge of the age-appropriate development for the

children, and that they were unable to utilize the education they received in their first

parenting class. The children have not lived with the parents, having been placed in foster
 13

care from birth.

{¶ 27} S.A.-1 and T.M. have been in the custody of their foster parents for their

entire lives; they are very bonded and integrated with that family. The foster mother takes

care of the children’s special and medical needs. The children have done well in this home.

S.A.-2 lives with another family and is bonded with that family. Both families have a good

relationship and the three children are able to bond with one another. The foster parents of

S.A.-1 and T.M. intend to adopt them, and are considering adoption of S.A.-2.

{¶ 28} The court found that the children are too young to express their wishes

regarding custody. The Guardian Ad Litem testified that she recommends awarding

permanent custody to MCCS.

{¶ 29} As noted above, the children have never lived with their parents. S.A.-1 has

been in the custody of MCCS for more than twelve months. There is evidence that the

parents cannot independently meet the needs of the children, and that they have no relatives

or friends who can aid them in parenting. There is also evidence that the parents have failed

to remedy the issues surrounding their housing and their mental health. The trial court did

not err in concluding that the need for legally secure placement cannot be met by the parents.

{¶ 30} Based upon the record before us, we conclude that the order awarding

permanent custody of the children to MCCS is supported by clear and convincing evidence.

Accordingly, Mother’s First Assignment of Error and Father’s sole assignment of error are

overruled.

IV. Trial Counsel Was Not Ineffective for Having Failed to Object

to Evidence of Mother’s Sexual Relationship with her Father;
 14

the Probative Value of this Evidence Outweighs its Prejudicial Effect

{¶ 31} Mother asserts the following as her Second Assignment of Error:

DEFENDANT WAS DEPRIVED OF HER RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT

TO TESTIMONY ABOUT HER CONSENSUAL SEXUAL

RELATIONSHIP WITH HER FATHER.

{¶ 32} Mother contends that references made to her sexual relationship with her

father were prejudicial. Specifically, Dr. Bromberg testified that Mother informed him that

her own father was the biological father of one of her older children. 2 Also, Mother

informed an agency employee that she did not view as inappropriate her sexual relationship

with her father. Mother contends trial counsel’s failure to object to the admission of this

evidence constitutes ineffective assistance of counsel.

{¶ 33} In termination proceedings, parents are entitled to counsel. R.C. 2151.352;

Juv.R. 4. This right includes the right to the effective assistance of trial counsel. In re

Wingo, 143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th Dist. 2001). The test for

ineffective assistance of counsel used in criminal cases is equally applicable to actions

seeking the permanent, involuntary termination of parental custody. In re T.P., 2d Dist.

Montgomery No. 20604, 2004-Ohio-5835, ¶ 45.

{¶ 34} To obtain reversal on a claim of ineffective assistance of counsel, an

appellant must demonstrate both deficient performance and resulting prejudice. Strickland

2
The record shows that Mother had previously had her rights terminated regarding two older children.
 15

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency,

the appellant must show that counsel's representation fell below an objective standard of

reasonableness. Id. Trial counsel is entitled to a strong presumption that his or her conduct

falls within the wide range of effective assistance. Id. The adequacy of counsel's

performance must be viewed in light of all of the circumstances surrounding the trial court

proceedings. Id. Hindsight may not be allowed to distort the assessment of what was

reasonable in light of counsel's perspective at the time. State v. Cook, 65 Ohio St.3d 516,

524, 605 N.E.2d 70 (1992). With this standard in mind, we turn first to the issue of whether

the evidence should have been admitted; i.e., would an objection likely have been sustained.

{¶ 35} Evid.R. 403(A) provides: “Although relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or of misleading the jury.” This rule “manifests a definite bias in favor of the

admission of relevant evidence, as the dangers associated with the potentially inflammatory

nature of the evidence must substantially outweigh its probative value before the court

should reject its admission.” State v. White, 4th Dist. Scioto No. 03CA 2926,

2004-Ohio-6005, ¶ 50. Thus, “[w]hen determining whether the relevance of evidence is

outweighed by its prejudicial effects, the evidence is viewed in a light most favorable to the

proponent, maximizing its probative value and minimizing any prejudicial effect to the party

opposing admission.” State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22.

In addition, trial courts have broad discretion in admitting evidence, and their decisions will

not be overturned absent an abuse of discretion and material prejudice to the defendant. State

v. Taylor, 2d Dist. Montgomery No. 20944, 2006-Ohio-843, ¶ 58, citing State v. Maurer, 15
 16

Ohio St.3d 239, 264-265, 473 N.E.2d 768 (1984).

{¶ 36} The evidence in this case indicates that Mother has extreme mental

limitations, and cannot make appropriate decisions with regard to her children. There is

also evidence that she did nothing to prevent the children from coming into contact with

Father’s brother, whom she knows to be a sexually oriented offender, and that she does not

prevent other individuals from living in her home. The trial court could reasonably find that

the evidence of Mother’s sexual relationship with her father is probative evidence of her lack

of judgment. While this evidence may also have some undue prejudicial effect, we do not

find the undue prejudice outweighs its probative value. Significantly, the finder of fact in

this case was a judge, not a jury, and we presume that the judge could distinguish the

legitimate probative effect of this evidence from its scandalous nature. We conclude that an

objection to this evidence would likely have been overruled. Therefore, counsel was not

ineffective for having failed to object to its admission.

{¶ 37} Mother’s Second Assignment of Error is overruled.

V. Conclusion

{¶ 38} Both of Mother’s assignments of error, and Father’s sole assignment of error

having been overruled, the order of the Juvenile Court awarding permanent custody of the

children to Montgomery County Children’s Services is Affirmed.

.............

DONOVAN and WELBAUM, JJ., concur.
 17

Copies mailed to:

Mathias H. Heck
Tiffany C. Allen
Robert L. Scott
James C. Staton
Hon. Anthony Capizzi