In re C.W.

[Cite as In re C.W., 2010-Ohio-2157.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY

IN THE MATTER OF:
CASE NO. 16-09-26
C.W.,

[MARY WARD,
OPINION
MOTHER-APPELLANT].

Appeal from Wyandot County Common Pleas Court
Juvenile Division
Trial Court No. C 2092020

Judgment Affirmed

Date of Decision: May 17, 2010

APPEARANCES:

Randy F. Hoffman for Appellant, Mary Ward

John Andrew Motter for Appellee, John Ward

Jonathan K. Miller and Douglas D. Rowland for Appellee,
Wyandot Co. Dept. of Job and Family Services
Case No. 16-09-26

SHAW, J.

{¶1} Mother-appellant, Mary Ward (“Mother”), appeals the December 16,

2009 judgment of the Common Pleas Court, Juvenile Division, of Wyandot

County, Ohio, granting temporary custody of her child, C.W., to C.W.’s maternal

aunt and uncle and providing the Wyandot County Department of Job and Family

Services (“DJFS”) with protective supervision of the child.

{¶2} On October 9, 2009, DJFS received information alleging that C.W.,

who was sixteen at that time, was being sexually abused by her father (“Father”).

The agency and the local sheriff’s department began investigating these

allegations. When DJFS made contact with C.W., she was staying with her aunt

and uncle. C.W. confirmed the allegations that her father sexually abused her for

a number of years. She also reported that she told her mother what her father had

been doing when he was incarcerated for another offense but that her mother

allowed her father to return to their home upon his release from prison.

{¶3} At some point while C.W. was staying with her aunt and uncle,

Mother came to the home and was upset with C.W. for coming forward about her

father. C.W.’s aunt contacted the sheriff’s department, which then informed DJFS

of Mother’s visit. Initially, DJFS was unable to contact Mother. The agency was

able to speak with C.W.’s mother a few days later when she came back to the

aunt’s home and the sheriff’s department was contacted again. Rodney Traxler of

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DJFS spoke to the mother at the sheriff’s department, and she signed a safety plan.

This plan allowed C.W. to stay with her aunt until further notice, did not allow

Mother to contact C.W. until further notice, and provided that Mother would

initiate counseling for her family.

{¶4} Shortly after signing the safety plan, Mother advised DJFS that she

did not agree with the plan and did not want to follow it. As a result of its

investigation and Mother’s unwillingness to follow the safety plan, DJFS filed a

two-count complaint on October 16, 2009, in the juvenile court, alleging that C.W.

was an abused and dependent child. That same day, a Court Appointed Special

Advocate (“CASA”) was appointed as C.W.’s guardian ad litem (“GAL”). On

October 26, 2009, the initial hearing in this matter was held, and both parents

requested court-appointed counsel, which was granted.1 The court also appointed

an attorney to represent C.W. In addition, DJFS informed the court that Mother

did not object to C.W. remaining with her aunt until further orders of the court,

and the trial court ordered that C.W. would continue to reside with her aunt.

{¶5} On November 13, 2009, DJFS filed a case plan, which was signed

by a number of people, including Mother and C.W.’s aunt. This plan provided

that C.W. would stay with her aunt, that Mother was willing to complete case plan

services to enable C.W. to return home, and that regular supervised visitation

1
C.W.’s father, John Ward, appeared at this hearing in the custody of the Wyandot County Sheriff’s
Department.

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would occur. The plan largely provided for counseling services for C.W., Mother,

and C.W.’s siblings, including family counseling to address the blame placed on

C.W. for the father’s absence. The plan also provided that visitation with C.W.

and her siblings would occur when deemed appropriate by the therapist, that

visitation may move to unsupervised visits with positive reports from service

providers and reduction in safety threats, and that Mother would follow all

recommendations made by the therapist.

{¶6} The adjudicatory hearing was held on November 19, 2009. Both

Mother and Father admitted that C.W. was an abused and dependent child.

However, Father did not admit that either he or Mother was the perpetrator of the

abuse, and Mother did not admit that she was the perpetrator. In addition, Mother

did not agree with C.W.’s current placement with the aunt. After reviewing the

record and accepting the admissions of the parents, the trial court found by clear

and convincing evidence that C.W. was an abused and dependent child and that

DJFS made reasonable efforts to prevent the removal of C.W. The court also

found that it was in C.W.’s best interest to remain in the temporary custody of her

aunt, as a temporary placement, and that DJFS would continue to have protective

supervision of C.W., who was now seventeen.

{¶7} On December 7, 2009, the dispositional hearing was held. DJFS

presented the testimony of the on-going caseworker, April Allison, the

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CASA/GAL assigned to C.W., Leona Feck, and Traxler. All three witnesses

testified that C.W. should continue to reside with her aunt. No other witnesses

were presented. However, counsel for each party, including counsel for C.W., was

given the opportunity to present closing argument. At the conclusion of the

hearing, the trial court found on the record that it was in C.W.’s best interest to

continue her temporary placement with her aunt and that DJFS maintain protective

supervision. The court also approved the case plan but stated that any references

to Father’s guilt should be removed from the plan because his guilt had not been

proven.2

{¶8} The court filed its judgment entry reflecting its disposition on

December 16, 2009. This appeal followed, and Mother now asserts three

assignments of error.

ASSIGNMENT OF ERROR I

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT
THE DISPOSITION HEARING IN NOT CALLING
WITNESSES OR CROSS EXAMINING TWO OF
APPELLEE’S WITNESSES ALLOWED FOR ERROR IN THE
PLACEMENT OF THE MINOR CHILD WITH THE
MATERNAL AUNT AND UNCLE OF THE CHILD OVER
THE APPELLANT’S PREVIOUSLY STATED OBJECTIONS.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN PLACING THE MINOR
CHILD WITH THE MATERNAL AUNT AND UNCLE OF
2
DJFS filed another case plan on December 9, 2009, deleting its prior reference to Father being the sexual
perpetrator but leaving all other provisions in tact.

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Case No. 16-09-26

THE CHILD AT DISPOSITION WHERE SUCH
PLACEMENT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE PRESENTED.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN PLACING THE MINOR
CHILD WITH THE MATERNAL AUNT AND UNCLE OF
THE CHILD WHERE THE CASE PLAN PREPARED BY
WYANDOT COUNTY JOB AND FAMILY SERVICES IS
NOT DESIGNED TO WORK TOWARD THE
REUNIFICATION OF THE MINOR CHILD WITH THE
APPELLANT AND HER FAMILY.

{¶9} For ease of discussion, we elect to address the assignments of error

out of the order in which they appear.

Second Assignment of Error

{¶10} A juvenile court has broad discretion in the disposition of an abused

neglected, or dependent child. See R.C. 2151.353(A) and Juv.R. 29(D). Included

among the dispositional orders concerning an abused, neglected, or dependent

child that a trial court may render are placement of the child in protective

supervision and committing the child to the temporary custody of a public children

services agency or a relative. R.C. 2151.353(A).

{¶11} In choosing among the alternatives, the best interest of the child is

the court’s primary consideration. In re Hauenstein, 3rd Dist. Nos. 5-03-38, 5-03-

39, 2004-Ohio-2915, at ¶ 20; see, also, In the Matter of Holtgreven (June 23,

1995), 3rd Dist. No. 5-95-7, unreported, 1995 WL 368841, citing In re Pieper

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Children (1993), 85 Ohio App.3d 318, 322, 619 N.E.2d 1059. Furthermore, in

making its dispositional order, the court must consider which situation will best

promote the “care, protection, and mental and physical development” of the child

with the understanding that the court should separate a child from his family

environment “only when necessary for the child’s welfare or in the interests of

public safety.” R.C. 2151.01(A). However, a reviewing court will not reverse the

trial court’s decision at this dispositional stage as being against the manifest

weight of the evidence if it is supported by competent and credible evidence.

Holtgreven, supra, citing C.E. Morris Co. V. Foley Constr. Co. (1978), 54 Ohio

St.2d 279, syllabus, 376 N.E.2d 578.

{¶12} In this case, the evidence revealed that C.W. reported that her father

had sexual intercourse repeatedly with her since she was approximately age

eleven. In addition, C.W. reported that her father had been incarcerated at one

point and that she told her mother about the sexual abuse while her father was in

prison. Nevertheless, according to C.W.’s report, Mother allowed Father to return

to their home upon his release. In addition, Traxler testified that Mother admitted

to him that C.W. told her at one time that Father was engaging in sexual activity

with her but that C.W. did not mention it again so Mother dismissed it. C.W.

reported that the abuse happened so often that she estimated having sexual

intercourse with her father approximately 150 times. Yet, when DJFS and law

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enforcement were made aware of these allegations, Mother and C.W.’s siblings

aligned themselves with Father and blamed C.W. for Father’s absence.

{¶13} The CASA/GAL testified3 that C.W. informed her that the visits

with her mother were not going well because her mother yelled at her frequently,

cried a lot, and tried to make C.W. feel guilty. The caseworker testified that

C.W.’s siblings were spreading rumors about her and antagonizing her at school

and that C.W. did not like her old school because of this. The caseworker also

expressed concern when questioned about C.W. being placed with her maternal

grandparents that it is only a short distance from Mother’s home, Mother visits

there frequently, including when C.W. was there with her aunt despite the fact the

caseworker asked Mother not to visit her parents when C.W. is there, and that

C.W. has received negativity about the current situation from them as well.

{¶14} As for the home of C.W.’s aunt, the evidence revealed that C.W. was

very comfortable in her aunt’s home. Her aunt had also taken measures to

accommodate C.W. living with her and her family of five. For instance, although

the aunt’s home consists of two bedrooms, the aunt and uncle gave C.W. their

bedroom and have been utilizing a couch and/or futon in the living room while

they are sleeping. This arrangement has been manageable because both the aunt

3
The CASA assigned to C.W.’s case as GAL was Louanne Hufford. However, at the dispositional
hearing, Leona Feck testified as the GAL. Feck was a CASA trainee who shadowed Hufford on C.W.’s
case. However, Feck testified that she personally spoke with C.W. on multiple occasions and made many
observations of her own.

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Case No. 16-09-26

and uncle work third shift. They are also in the process of looking for a bigger

home. The caseworker further testified that while the home may be a “tight fit,”

there is adequate room, food, clothing, and shelter with the aunt. In addition,

C.W. is very close to her aunt and uncle, is very much a sister to her cousins, and

they have been involved with C.W. for a long period of time. Moreover, before

the allegations of sexual abuse were made, C.W. often stayed with her aunt and

uncle, “residing on and off there for years” and staying with them on weekends

and during the summers. C.W.’s aunt takes her to all medical appointments and

counseling appointments. She also has set rules to follow while living in the

aunt’s home, and C.W. obeys them. Further, the aunt and uncle are supportive of

C.W., and she feels comfortable and stable in their home.

{¶15} The testimony also revealed that C.W. wanted to stay with her aunt

and uncle. She enjoyed her new school, which was free of any ridicule from her

siblings, and living with her aunt was her “comfort zone.” The CASA/GAL was

also concerned that removing C.W. from her aunt’s home and putting her in a

different place would not be beneficial to her mental health and would likely cause

more problems. Further, during closing argument, C.W.’s attorney informed the

court that C.W. did not want to return to her mother’s home, that she does not feel

comfortable there, that she did not want to live with her maternal grandparents

either because they lived in close proximity to her mother’s home and her mother

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and siblings frequently visit there, and that she had no desire to be in a foster

home. C.W.’s attorney also stated that C.W. feels safe and protected in her aunt’s

home and that her aunt cares for her deeply and would do anything to protect her.

{¶16} Given all of the aforementioned evidence and the recommendation

of all three witnesses that C.W. remain in her aunt’s home, as well as the

representations made by counsel for C.W., we do not find that the trial court erred

in finding that it was in C.W.’s best interest to remain in her temporary placement

with her aunt. The court noted that it was concerned about the negativity directed

towards C.W. by her siblings and Mother. The court also noted that Mother and

Father had no issues with allowing C.W. to frequently stay in the aunt and uncle’s

home before the allegations of sexual abuse and that nothing in the record

indicated that anything had changed or would change in the home regarding their

protection, attitude, or care for C.W. In addition, the court found that C.W. was

comfortable at her new school and that it did not “carry with it the baggage the old

school did[.]” Each of these findings and the decision to keep C.W. in her current

placement were supported by competent and credible evidence. Therefore, the

second assignment of error is overruled.

Third Assignment of Error

{¶17} In her third assignment of error, Mother contends that the trial court

erred in placing C.W. with her aunt because the case plan prepared by DJFS was

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not designed to work toward reunification. In support of this contention, Mother

asserts that the caseworker’s testimony clearly indicated that no other placement is

being considered and that C.W.’s age renders the court’s disposition a “de facto

permanent custody” as there is not sufficient time to work through the case plan

requirements because C.W. will turn eighteen in October, 2010.

{¶18} The Revised Code requires that a children services agency prepare

and maintain a case plan for any child to whom the agency is providing services

and to whom the agency filed a complaint alleging that the child is an abused,

neglected, or dependent child. R.C. 2151.412(A)(1). This case plan is to be filed

with the court prior to the adjudicatory hearing but no later than thirty days after

the earlier of the date on which the complaint is filed or the child was first placed

into shelter care. R.C. 2151.412(C). The agency is also required to attempt to

obtain an agreement among all parties, including the parents regarding the content

of the case plan, and the court is required to journalize the case plan as part of its

dispositional order if all parties agree to the content and the court approves it.

R.C. 2151.412(D). All case plans for children in temporary custody must have

certain general goals, including “[c]onsistent with the best interest and special

needs of the child, to achieve a safe out-of-home placement in the least restrictive,

most family-like setting available and in close proximity to the home from which

the child was removed” and “[t]o eliminate with all due speed the need for the out-

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of-home placement so that the child can safely return home.” R.C.

2151.412(F)(1)(a-b).

{¶19} In the case sub judice, the case plan for C.W. was filed within the

required time period and was signed by Mother. C.W.’s mental well-being was a

large part of the concerns provided in this case plan, particularly the detrimental

impact the abuse had on her and the way her family reacted towards her once she

revealed this abuse. Thus, the majority of services were directed at helping C.W.,

her mother, and her siblings deal with C.W.’s revelations of sexual abuse

perpetrated upon her and the upheaval in the family because of these revelations.

More specifically, the case plan called for counseling for C.W., her mother, and

her siblings. It also addressed the need for family counseling to learn coping skills

and ways to not blame C.W. for the events that happened in the home. The plan

further provided supervised visitation between C.W. and her mother but that

visitation could possibly change to unsupervised visits if the service providers

gave positive reports and there was a reduction in threats to C.W.’s safety. It also

provided for visitation with her siblings when deemed appropriate by the therapist.

{¶20} Although Mother asserts that the caseworker’s testimony

demonstrated that DJFS was not considering any other placement, including

reunifying C.W. with Mother, a review of the testimony does not support this

conclusion. The caseworker testified that she had not explored using Mother or

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anyone other than the aunt and uncle as a caretaker for C.W. for purposes of the

dispositional hearing, specifically stating that Mother was not being considered as

a placement option at this time. She never testified that returning C.W. to her

mother’s home was not a possibility in the future. Rather, at the time of the

dispositional hearing, Father was incarcerated, Mother and C.W.’s siblings blamed

C.W. for his absence, and C.W.’s visits with Mother involved Mother crying,

yelling, and attempting to make C.W. feel guilty. Further, C.W.’s siblings spread

rumors about her, causing her not to like going to the school she attended while

living with her mother. Therefore, returning to Mother’s home under the

circumstances as they existed at the time of disposition was not in C.W.’s best

interest. However, the case plan was designed to address these issues with the

goal being to change the behavior of Mother and C.W.’s siblings towards C.W. so

that she could safely return home and not feel guilty for reporting the abuse she

endured.

{¶21} As for the fact that C.W. is seventeen, we do not find that the

placement of C.W. with her aunt and uncle results in a de facto grant of permanent

custody. To the contrary, whether Mother accomplishes the goals set forth in the

case plan before C.W. turns eighteen is entirely up to her. This is a matter of not

blaming C.W. for the predicament in which the family finds itself, not attempting

to make her feel guilty, and supporting her through the counseling she needs to

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handle the emotional toll that the sexual abuse perpetrated against her caused.

These are issues that the mother and siblings have, and it is not unreasonable to

expect that their attitudes and behaviors change before C.W., who has been a

victim of significant sexual abuse over a long period of time, is able to return to

that home.

{¶22} In light of the evidence, we find that the case plan was adequately

designed to accomplish its required goals of 1) a safe out-of-home placement in

the least restrictive, most family-like setting available and 2) reunification with her

mother. Furthermore, Mother agreed to this plan when she signed it, and the only

concerns she stated were that Father was identified as the perpetrator, that the

abuse was alleged to have occurred in her home, and that C.W. was being placed

with the aunt. Accordingly, we do not find that the trial court erred in adopting the

case plan provided by DJFS or in placing C.W. with her aunt and uncle, which

was the least restrictive, most family-like setting available. Therefore, the third

assignment of error is overruled.

First Assignment of Error

{¶23} Mother asserts in her first assignment of error that she was denied

the effective assistance of counsel. Specifically, Mother contends that her trial

counsel was ineffective because he failed to present any evidence on her behalf at

the dispositional hearing, including calling her as a witness and offering

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alternatives to placement with the aunt and uncle, and failed to cross-examine two

of the three witnesses called by DJFS to demonstrate that placement with the aunt

was not appropriate.

{¶24} The Supreme Court of Ohio has adopted a two-part test for

determining claims of ineffective assistance of counsel in criminal prosecutions.

State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus, 538

N.E.2d 373, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052.

This standard two-part test for establishing ineffective assistance of counsel also

applies to permanent custody proceedings. In re Shores, 3rd Dist. No. 1-07-16, 1-

07-17, 2007 -Ohio- 5193, at ¶ 17, citing In re T.P., 2nd Dist. No. 20604, 2004-

Ohio-5835.

{¶25} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. Bradley, 42 Ohio St.3d at

paragraph two of the syllabus, 538 N.E.2d 373. As to the first prong of the test,

counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675, 693 N.E.2d 267, 1998-Ohio-343. Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72

Ohio St.3d 545, 558, 651 N.E.2d 965, 1995-Ohio-104. Rather, the errors

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complained of must amount to a substantial violation of counsel’s essential duties

to his client. See Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373, quoting

State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623, imposition of death

penalty vacated by Lytle v. Ohio (1978), 438 U.S. 910, 98 S.Ct. 3135 (holding

Ohio’s death penalty scheme in effect at the time was unconstitutional).

{¶26} Regarding the second prong of prejudice, a defendant must prove

that there exists a reasonable probability that, but for counsel’s errors, the outcome

at trial would have been different. Id. at paragraph three of the syllabus.

“Reasonable probability” is a probability sufficient to undermine confidence in the

outcome of the trial. Id. at 142.

{¶27} An attorney’s decision not to cross-examine a witness falls within

the category of tactical or strategic trial decisions. State v. Pasqualone, 121 Ohio

St.3d 186, 903 N.E.2d 270, 2009-Ohio-315, at ¶ 31. “An appellate court

reviewing an ineffective assistance of counsel claim must not scrutinize trial

counsel’s strategic decision to engage, or not engage, in a particular line of

questioning on cross-examination.” In re Brooks, 10th Dist. Nos. 04AP-164,

04AP-165, 04AP-201, 2004-Ohio 3887, at ¶ 40, citing State v. Revels, 12th Dist.

Nos. CA2001-09-223, CA2001-09-230, 2002-Ohio-4231, at ¶ 28; see, also,

Pasqualone, supra.

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{¶28} Mother’s attorney elected not to cross-examine the CASA/GAL or

Traxler. This decision constitutes a tactical or strategic trial decision. As noted,

such a decision enjoys a strong presumption of reasonableness, which Mother

must overcome to prevail on her claim of ineffective assistance.

{¶29} Our review of the record reveals that the trial court followed an

order of examination whereby Father’s attorney was the first attorney afforded the

opportunity to cross-examine each witness. Father’s attorney asked a number of

questions of these two witnesses and the caseworker about placement of C.W.,

including alternatives to placement with the aunt. Also, Mother’s trial counsel

raised these issues in his cross-examination of the caseworker. Thus, many of the

concerns now raised by Mother were brought out in the cross-examinations

conducted by Father’s attorney and/or her attorney’s cross-examination of the

caseworker. Moreover, Mother has failed to demonstrate that cross-examination

of these two witnesses by her attorney would have resulted in a different outcome.

Therefore, we do not find that the decision not to cross-examine these two

witnesses amounted to ineffective assistance of counsel.

{¶30} As for counsel’s decision not to call Mother as a witness or present

any other evidence, this also falls within the realm of trial strategy. See State v.

Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749, 2001-Ohio-4. Thus, it, too,

enjoys a strong presumption of reasonableness, which Mother must overcome to

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prevail on her claim of ineffective assistance. Mother has not presented any

argument as to what her testimony would have been, what other evidence there

was to present, or how the outcome of the proceeding would have been different if

she had testified or other evidence had been presented. Thus, we cannot find that

this decision resulted in ineffective assistance of counsel either. Accordingly, the

first assignment of error is overruled.

{¶31} For all of these reasons, the judgment of the Common Pleas Court,

Juvenile Division, of Wyandot County, Ohio, is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J., and PRESTON, J., concur.

/jlr

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