In re K.M.D.

[Cite as In re K.M.D., 2012-Ohio-755.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

In the Matter of: :
:
K.M.D. :
: Case No. 11CA3289
Adjudicated Dependent Child. :
: DECISION AND
: JUDGMENT ENTRY
:
: Filed: February 24, 2012
____________________________________________________________________

APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
____________________________________________________________________

Kline, J.:

{¶1} M.D. (hereinafter “Father”) appeals the judgment of the Ross County

Court of Common Pleas, Juvenile Division. Following a hearing, the trial court entered

an order that granted Ross County Job and Family Services’ (hereinafter the “Agency”)

motion for permanent custody of Father’s daughter, K.M.D. (hereinafter “Child”). On

appeal, Father first contends that the trial court erred when it determined that granting

the Agency’s motion for permanent custody of Child was in Child’s best interest.

Because there is competent, credible evidence supporting the trial court’s decision, we

disagree. Next, Father contends that the trial court erred by denying his motions for a

continuance so that the Agency could investigate Child’s paternal grandfather as a

placement option for Child. Because the trial court did not abuse its discretion when it
Ross App. No. 11CA3289 2

denied Father’s motions for a continuance, we disagree. Next, Father contends that the

trial court erred by failing to hold the Agency in contempt for not completing its home

investigation of Child’s paternal grandfather, despite the magistrate’s order that the

Agency should conduct the investigation. Because Father cannot show that the trial

court’s failure to hold the Agency in contempt was plain error, we disagree. Next,

Father contends that the trial court erred by not placing Child with her paternal

grandfather. Because (1) placing Child with her paternal grandfather was not an issue

before the trial court and (2) competent, credible evidence supports the trial court’s

decision to grant the Agency’s motion for permanent custody of Child, we disagree.

Next, Father contends that the trial court erred by failing to find that the Agency did not

make reasonable efforts to investigate Child’s paternal grandfather as a potential

placement for Child. We disagree for two reasons. First, the Agency did not have a

statutory duty to investigate Child’s paternal grandfather as a potential placement for

Child before obtaining permanent custody. And second, competent, credible evidence

supports the trial court’s finding that the Agency did make reasonable efforts to place

Child with a relative. Next, Father contends that the trial court erred in finding that

Child’s paternal grandfather did not show any interest in working with the Agency.

Because competent, credible evidence supports the trial court’s finding that Child’s

paternal grandfather did not show any interest in cooperating with the Agency when the

Agency contacted him shortly after Child’s birth, we disagree. Next, Father contends

that the trial court erred when it determined that, even though the Agency did not

complete a home investigation of Child’s paternal grandfather, Child’s paternal

grandfather introduced all relevant information when he testified at the July 14, 2011
Ross App. No. 11CA3289 3

permanent custody hearing. Because Father has not articulated any additional

information that could have been introduced at the hearing had the Agency conducted

its home investigation of Child’s paternal grandfather, we disagree. Finally, Father

contends that he received ineffective assistance of counsel at the permanent custody

hearing. Because Father cannot demonstrate that he was prejudiced by any alleged

deficient performance by his trial counsel, we disagree.

{¶2} Accordingly, we affirm the judgment of the trial court.

I.

{¶3} H.S. (hereinafter “Mother”) gave birth to Child in a motel bathroom on

October 1, 2010. Child was born addicted to opiates due to Mother’s prenatal drug use.

On October 4, 2010, Child was placed in the temporary custody of the Agency, and

Child has been in the continuous custody and care of the Agency since that time.

{¶4} Shortly after her birth, Child was taken to a hospital. Child spent the first

several weeks of her life suffering from withdrawal due to her addiction to opiates. She

was released from the hospital on December 14, 2010, and she was placed into the

care of her foster parents, R.P. and T.P. Child has lived with her foster parents since

her release from the hospital.

{¶5} Mother and Father have had essentially no contact with Child since her

birth. The record indicates that Mother was arrested near the end of October 2010, on a

drug charge, and she was released from jail on June 6, 2011. Mother’s contact with

Child has been sporadic since her release from jail. The Agency developed a case plan

for Mother. The goals of the case plan were (1) for Mother to seek substance abuse

counseling and remain drug free and (2) for Mother to meet Child’s basic needs. As of
Ross App. No. 11CA3289 4

the date of the permanent custody hearing, Mother had not completed her case plan,

and she had not maintained regular contact with the Agency. Mother did not attend the

permanent custody hearing, and Mother did not provide the Agency with an address

where she could be contacted. Father was in prison on a felony drug conviction at the

time of Child’s birth. Father’s sentence runs until February 17, 2013. Father has two

previous drug convictions. Additionally, Mother and Father are the parents of two other

children. Mother and Father had their parental rights to those children involuntarily

terminated in April of 2010.

{¶6} On December 1, 2010, Child was adjudicated an “abused child” based on

Mother’s prenatal drug use. And on December 4, 2010, the Agency moved for

permanent custody of Child under R.C. 2151.413. A hearing on the permanent custody

motion was held before a magistrate on July 14, 2011. On August 8, 2011, the

magistrate issued a decision granting the Agency’s motion for permanent custody.

Father filed timely objections to the magistrate’s decision. On September 8, 2011, the

trial court entered an order requesting clarification of certain issues from the magistrate,

and the magistrate issued her clarification decision on September 9, 2011.

{¶7} On September 15, 2011, the trial court issued an Entry, which

incorporated and adopted both the magistrate’s August 8, 2011 and September 9, 2011

decisions. The September 15, 2011 Entry terminated Mother and Father’s parental

rights and responsibilities as to Child and granted the Agency’s motion for permanent

custody of Child.
Ross App. No. 11CA3289 5

{¶8} Father appeals and asserts the following assignments of error:1 I. “THE

TRIAL COURT ERRED BY FINDING THAT PERMANENT CUSTODY WAS IN THE

BEST INTEREST OF THE CHILD.” II. A. “THE TRIAL COURT ERRED IN REFUSING

TO GRANT A CONTINUANCE ON TWO (2) OCCASIONS SO THAT APPELLANT’S

FATHER (‘GRANDFATHER’) COULD BE SERIOUSLY CONSIDERED AS A

PLACEMENT AND/OR CUSTODIAN FOR THE MINOR CHILD.” II. B. “THE TRIAL

COURT ERRED IN FAILING TO HOLD CHILDREN’S SERVICES IN CONTEMPT FOR

FAILURE TO COMPLY WITH THE COURT’S ORDER TO CONDUCT A HOME STUDY

RELATED TO GRANDFATHER.” II. C. “THE TRIAL COURT ERRED IN REFUSING

TO PLACE THE MINOR CHILD WITH APPELLANT’S FATHER (‘GRANDFATHER’) AS

A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. D. “THE TRIAL COURT

ERRED IN FAILING TO FIND THAT CHILDREN’S SERVICES DID NOT MAKE

REASONABLE EFFORTS TO INVESTIGATE APPELLANT’S FATHER

(‘GRANDFATHER’) AS A POTENTIAL PLACEMENT FOR THE MINOR CHILD.” II. E.

“THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S FATHER

(‘GRANDFATHER’) DID NOT SHOW ANY INTEREST IN WORKING WITH

CHILDREN’S SERVICES.” II. F. “THE TRIAL COURT ERRED IN FINDING THAT

APPELLANT’S FATHER (‘GRANDFATHER’) INTRODUCED ALL RELEVANT

INFORMATION AND EVIDENCE THROUGH HIS TESTIMONY AT THE HEARING.”

And, III. “THE FATHER M.D. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.”

1
We note that, in his brief, Father lists his second assignment of error as “ISSUES
RELATED TO APPELLANT’S FATHER (‘GRANDFATHER’)”. And under that
assignment of error, Father lists six reasons (lettered A – F) why the trial court’s
decision should be reversed. We will list all six arguments here, and we will address
each argument in the section below devoted to Father’s second assignment of error.
Ross App. No. 11CA3289 6

II.

{¶9} In his first assignment of error, Father argues that the trial court erred by

finding that permanent custody was in the best interest of Child.

{¶10} A parent’s “interest in the care, custody, and control of [his or her] children

‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A., 113 Ohio St.3d

88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 8, quoting Troxel v. Granville, 530 U.S. 57, 65,

120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Further, “[p]ermanent termination of parental

rights has been described as ‘the family law equivalent of the death penalty in a criminal

case.’” In re D.A., 2007-Ohio-1105, ¶ 10, quoting In re Smith, 77 Ohio App.3d 1, 16,

601 N.E.2d 45 (6th Dist.1991). As such, “parents ‘must be afforded every procedural

and substantive protection the law allows.’” In re D.A., 2007-Ohio-1105, ¶ 10, quoting

In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). “‘[I]t is plain that the natural

rights of a parent are not absolute, but are always subject to the ultimate welfare of the

child, which is the polestar 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).

{¶11} “A public or private child-placement agency may file a motion under R.C.

2151.413(A) to request permanent custody of a child after a court has committed the

child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. Once a motion is filed

under R.C. 2151.413(A), the court must follow R.C. 2151.414. Id.

{¶12} A trial court may grant the agency’s motion for permanent custody if it

determines by clear and convincing evidence that: (1) one of the four conditions outlined
Ross App. No. 11CA3289 7

in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.

2151.414(B)(1); In re McCain, 4th Dist. No. 06CA654, 2007-Ohio-1429, ¶ 13. “Clear

and convincing evidence is 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.” In re Estate of Haynes, 25 Ohio St.3d 101, 104, 495 N.E.2d 23 (1986).

Thus, “[i]t 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.” Id.

{¶13} We will not reverse the judgment of the trial court in a permanent custody

case when some competent, credible evidence supports the trial court’s findings. In re

Marano, 4th Dist. No. 04CA30, 2004-Ohio-6826, ¶ 12. “We give the trial court’s final

determination ‘the utmost respect, given the nature of the proceeding and the impact

the court’s determination will have on the lives of the parties concerned.’” Id., quoting In

re Alfrey, 2d Dist. No. 01CA0083, 2003-Ohio-608, ¶ 102.

{¶14} Accordingly, we must determine if competent, credible evidence supports

the trial court’s findings regarding both the best interest of the child and the

requirements of R.C. 2151.414(B)(1)(a)-(d). In re D.N., 4th Dist. No. 11CA3213, 2011-

Ohio-3395, ¶ 17.

A.

{¶15} First, we must address whether Father has waived any arguments under

his first assignment of error. “The juvenile rules require written objections to a

magistrate's decision to be filed within 14 days of the decision.” In re D.S., 12th Dist.

Nos. CA2010-08-058, CA2010-08-064, & CA2010-08-065, 2011-Ohio-1279, ¶ 31, citing
Ross App. No. 11CA3289 8

Juv.R. 40(D)(3)(b)(i). Under Juv.R. 40(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a

party shall not assign as error on appeal the court’s adoption of any factual finding or

legal conclusion, whether or not specifically designated as a finding of fact or conclusion

of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or

conclusion as required by Juv.R. 40(D)(3)(b).” This “embodies the long-recognized

principle that the failure to draw the trial court’s attention to possible error when the error

could have been corrected results in a waiver of the issue for purposes of appeal.” In re

D.S., 2011-Ohio-1279, ¶ 31, citing In re Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d

694 (1st Dist.1998). Objections under Juv.R. 40(D)(3)(b)(i) “must be ‘specific’ and must

‘state with particularity all grounds for objection.’” In re D.S., 2011-Ohio-1279, ¶ 31,

quoting Juv.R. 40(D)(3)(b)(ii). The “[f]ailure to file specific objections is treated the

same as the failure to file any objections.” In re D.R., 12th Dist. No. CA2009-01-018,

2009-Ohio-2805, ¶ 29. See also In re D.N., 2011-Ohio-3395, ¶ 18.

{¶16} In challenging the trial court’s determination that permanent custody is in

Child’s best interest, Father argues that the trial court erred in finding that “[Child]

cannot and should not be reunited with either parent.” Sept. 15, 2011 Entry (adopting

and incorporating Magistrate’s Aug. 8, 2011 Decision). Father did not specifically object

to this finding before the trial court. Consequently, we review this particular argument

under a plain error standard.

{¶17} “In appeals of civil cases, the plain error doctrine is not favored and may

be applied only in the extremely rare case involving exceptional circumstances where

error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the
Ross App. No. 11CA3289 9

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson, 79 Ohio St.3d

116, 679 N.E.2d 1099 (1997), syllabus.

{¶18} We conclude that the trial court did not err, much less commit plain error,

in finding that Child cannot and should not be reunited with either parent. Initially, we

note that the determination of whether a child cannot or should not be reunited with

either parent is not part of the best-interest-of-the-child analysis in a permanent custody

case. As indicated above, under R.C. 2151.414(B)(1), a trial court may grant the

agency’s motion for permanent custody if it determines by clear and convincing

evidence that: (1) one of the four conditions outlined in R.C. 2151.414(B)(1)(a)-(d)

applies; and (2) it is in the child’s best interest.

{¶19} Specifically, R.C. 2151.414(B)(1)(a)-(d) provides as follows:

Except as provided in division (B)(2) of this section, the court may grant

permanent custody of a child to a movant if the court determines at the

hearing held pursuant to division (A) of this section, by clear and

convincing evidence, that it is in the best interest of the child to grant

permanent custody of the child to the agency that filed the motion for

permanent custody and that any of the following apply:

(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
Ross App. No. 11CA3289 10

described in [R.C. 2151.413(D)(1)], 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 [R.C.

2151.413(D)(1)], the child was previously in the temporary custody of an

equivalent agency in another state. (Emphasis added.)

{¶20} Here, R.C. 2151.414(B)(1)(a) applies, and the determination of whether

Child cannot or should not be reunited with her parents is part of that analysis (i.e., it is

not part of the best-interest-of-the-child analysis).

{¶21} As of July 14, 2011 hearing, Child “[was] not abandoned or orphaned,

[had] 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 [had] not been in the temporary custody of one or more

public children services agencies or private child placing agencies for twelve or more
Ross App. No. 11CA3289 11

months of a consecutive twenty-two-month period if, as described in [R.C.

2151.413(D)(1)], the child was previously in the temporary custody of an equivalent

agency in another state.” R.C. 2151.414(B)(1)(a).

{¶22} Furthermore, the trial court found that “[Child] cannot and should not be

reunited with either parent.” Sept. 15, 2011 Entry (adopting and incorporating

Magistrate’s Aug. 8, 2011 Decision).

{¶23} The record supports the trial court’s finding that Child cannot and should

not be reunited with either parent based on R.C. 2151.414(E). That statute enumerates

circumstances under which a trial court must find that a child cannot be placed with

either parent in a reasonable time or should not be placed with either parent.

Specifically, R.C. 2151.414(E) provides, in relevant part, as follows:

If the court determines, by clear and convincing evidence, * * * that one or

more of the following exist as to each of the child’s parents, the court shall

enter a finding that the child cannot be placed with either parent within a

reasonable time or should not be placed with either parent: * * * (4) The

parent has demonstrated a lack of commitment toward the child by failing

to regularly support, visit, or communicate with the child when able to do

so, or by other actions showing an unwillingness to provide an adequate

permanent home for the child; * * * (12) The parent is incarcerated at the

time of the filing of the motion for permanent custody or the dispositional

hearing of the child and will not be available to care for the child for at

least eighteen months after the filing of the motion for permanent custody
Ross App. No. 11CA3289 12

or the dispositional hearing. (Emphasis added.) R.C. 2151.414(E)(4) &

(12).

{¶24} Regarding Father, R.C. 2151.414(E)(12) applies. Father’s release date

from prison is February 17, 2013, which is approximately nineteen (19) months from the

July 14, 2011 hearing. Therefore, as of the July 14, 2011 hearing, “[Father was]

incarcerated at the time of * * * the dispositional hearing of the child and [would] not be

available to care for the child for at least eighteen months after * * * the dispositional

hearing.” R.C. 2151.414(E)(12).

{¶25} In challenging the trial court’s finding that Child cannot and should not be

reunited with either parent, Father argues that the trial court failed to consider the

possibility of Father obtaining judicial release from prison. Father previously applied for

judicial release, but the trial court denied his application. However, based on the trial

court’s statements when denying his application, Father asserts the trial court will

“seriously consider” granting a second application once Father completes a program

that Father has enrolled in while in prison. Appellant’s Brief at 10-11. Thus, Father

argues that he could be out of prison within months of the hearing, and, therefore,

reunited with Child in a reasonable time.

{¶26} Father’s argument, however, is based on pure speculation regarding the

action the trial court may or may not take in considering Father’s application for judicial

release. There is no guarantee (1) that Father will complete the program he enrolled in

or (2) that, even if he does complete the program, he will obtain judicial release from

prison. Thus, Father cannot show that he could be or should be reunited with Child in a

reasonable time.
Ross App. No. 11CA3289 13

{¶27} Regarding Mother, R.C. 2151.414(E)(4) applies. Child was born addicted

to opiates based on Mother’s drug use during her pregnancy. As a result, Child was

adjudicated an abused child. Additionally, Mother has not maintained contact with the

Agency regarding her efforts to rehabilitate her substance abuse problems. Mother’s

contact with Child has been sporadic at best. As of the July 14, 2011 hearing, Mother

did not have a known address. Furthermore, Mother did not attend the July 14, 2011

hearing. Consequently, “[Mother] has demonstrated a lack of commitment toward the

child by failing to regularly support, visit, or communicate with the child when able to do

so, or by other actions showing an unwillingness to provide an adequate permanent

home for the child[.]” R.C. 2151.414(E)(4).

{¶28} Thus, the record demonstrates that R.C. 2151.414(E)(12) applied to

Father, and R.C. 2151.414(E)(12) applied to Mother. As a result, we conclude that the

trial court did not err, much less commit plain error, in finding that Child cannot and

should not be reunited with either parent. Therefore, R.C. 2151.414(B)(1)(a) of the

permanent-custody analysis was satisfied.

B.

{¶29} We now turn to the remainder of Father’s argument that the trial court

erred in finding that permanent custody was in Child’s best interest.

{¶30} Father contends that the trial court erred because the four requirements of

R.C. 2151.414(D)(2) cannot be satisfied. Father’s argument, however, ignores the plain

language of the statute. R.C. 2151.414(D)(2) provides, in pertinent part, as follows: “If

all of the following apply, permanent custody is in the best interest of the child and the

court shall commit the child to the permanent custody of a public children services
Ross App. No. 11CA3289 14

agency or private child placing agency[.]” (Emphasis added.) Under the plain language

of the statute, if the requirements of R.C. 2151.414(D)(2) are satisfied, then the trial

court must grant the permanent custody motion. That does not mean, however, that

permanent custody is in a child’s best interest only if the requirements of R.C.

2151.414(D)(2) are satisfied. Thus, Father’s arguments that the trial court erred based

on an inability to satisfy the requirements of R.C. 2151.414(D)(2) must fail.

{¶31} Here, R.C. 2151.414(D)(1) governs the best-interest-of-the-child analysis,

and that statute provides as follows:

In determining the best interest of a child * * * the court shall consider all

relevant factors, including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

(b) 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;

(c) The custodial history of the child, including whether 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 [R.C. 2151.413(D)], the
Ross App. No. 11CA3289 15

child was previously in the temporary custody of an equivalent agency in

another state;

(d) 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;

(e) Whether any of the factors in [R.C. 2151.414(E)(7) to (11)] in relation

to the parents and child.

{¶32} The evidence supports the trial court’s determination that permanent

custody is in Child’s best interest. As indicated above, Child spent the first several

weeks of life in the hospital as she suffered from withdrawal caused by being born

addicted to opiates. Child was then placed in the care of her foster parents, R.P. and

T.P., and Child has been in her foster parents’ care ever since her release from the

hospital. Child’s foster mother, T.P., testified that Child has been thriving in her foster

parents’ home. Child’s caseworker also testified that Child was thriving while in the care

of her foster parents. T.P. testified that Child has bonded with her entire foster family

(i.e., T.P., R.P., Child’s foster brother, and Child’s foster grandmother). T.P. also

testified that Child has exceeded developmental milestones while in the care of her

foster parents. Furthermore, T.P. testified that she and R.P. own their home and are

financially secure. Additionally, T.P. testified that she and R.P. plan on adopting Child.

{¶33} The trial court determined that Child “[was] in need of a legally secure

permanent placement which [could not] be obtained without a grant of permanent

custody to the agency.” Sept. 15, 2011 Entry (adopting and incorporating Magistrate’s

Aug. 8, 2011 Decision). The court also determined that “[t]he conditions giving rise to
Ross App. No. 11CA3289 16

the child’s removal have not been remedied.” Id. at 1. And although Child is too young

to express her wishes, Child’s guardian ad litem recommended that the trial court grant

the Agency’s motion for permanent custody of Child.

{¶34} Additionally, Child has had little or no interaction with Mother, Father, or

any relative of Mother or Father since birth. Father has been in prison, and the

evidence demonstrated that, other than filling out some paperwork, Father did little to

contact the Agency regarding Child. Mother’s involvement in Child’s life has been

minimal. And in addition to not attending the permanent custody hearing, Mother’s

address was not known at time of the hearing.

{¶35} Father argues at length that the trial court should have placed Child in the

temporary care of A.B., Child’s paternal grandfather. A.B. testified at the hearing that

he owns his home and that he has been employed with the City of Columbus for many

years. A.B. also testified that he was willing to care for Child. The evidence, however,

demonstrates that A.B. had done little, if anything, to initiate contact with Child, despite

being contacted regarding Child shortly after Child’s birth. In fact, A.B. admitted at the

hearing that he never “went to visit [Child] or [tried] to arrange a visit with [Child.]” Tr. at

52-53. Additionally, the trial court found that A.B. did not cooperate with the Agency’s

attempts to investigate A.B. as a possible placement option prior to the July 14, 2011

hearing. (We will discuss Father’s challenges to this finding in more detail under

Father’s second assignment of error.) Moreover, the Agency investigated the possibility

of placing Child with other relatives, but the Agency was unable to find a suitable

placement for Child.
Ross App. No. 11CA3289 17

{¶36} Considering the reasons stated above, there was competent credible

evidence to support the trial court’s conclusion that granting the permanent custody

motion was in Child’s best interest. Accordingly, we overrule Father’s first assignment

of error.

III.

{¶37} In his second assignment of error, Father advances several arguments

that the trial court erred based on “issues” relating to A.B. For ease of analysis, we will

address Father’s arguments relating to A.B. in a different order than Father lists them in

his Appellant’s brief.

A.

{¶38} We begin with Father’s argument that the trial court erred in finding that

A.B. “did not show any interest in working with [the Agency] when contacted in October

2010.” Magistrate’s Aug. 8, 2011 Dec. at 1. As stated above, we will uphold the trial

court’s finding as long as some competent, credible evidence supports it. In re Marano,

2004-Ohio-6826, ¶ 12.

{¶39} Shortly after Child’s birth, the caseworker assigned to Child’s case

explored relative placement for Child, and she contacted A.B. in October 2010, to obtain

information about A.B. The caseworker testified that A.B. would not provide her with the

information she requested. Instead, A.B. informed the caseworker that she could get

his information from “Franklin County.” (Presumably, A.B. was referring to information

that Franklin County Job and Family Services would have as a result of the termination

of Mother and Father’s parental rights for their other two children in that county.) The

caseworker also testified that, during this conversation, A.B. refused to provide either
Ross App. No. 11CA3289 18

his date of birth or his social security number to assist the caseworker in her effort.

Furthermore, the caseworker testified that Franklin County officials did not have any

information on A.B.

{¶40} A.B. claimed that he did not remember the conversation with the

caseworker. A.B. testified that, at some point, he contacted the Agency, but he got the

“run around.” Tr. at 45-46. A.B., however, could not name anyone at the Agency with

whom he spoke. Additionally, when asked whether he told the caseworker that she

could get his information from Franklin County, A.B. testified, “Maybe I did. But I don’t

remember saying it.” Tr. at 53. The trial court determined that “[a]t best, [A.B.’s]

testimony was confused and inconsistent, if not evasive.” Sept. 15, 2011 Entry at 2.

{¶41} Thus, there was some competent credible evidence to support the trial

court’s finding that A.B. “did not show any interest in working with [the Agency] when

contacted in October 2010[.]” Consequently, we cannot conclude that the trial court

erred when it made this finding.

B.

{¶42} Next, we consider Father’s arguments that the trial court erred by failing to

find that the Agency did not make reasonable efforts to investigate A.B. as a potential

placement for Child.

{¶43} We recently rejected a similar argument in In re M.O., 4th Dist. No.

10CA3189, 2011-Ohio-2011. As we observed, “a public children services agency has

no statutory duty to make ‘reasonable efforts’ to place the child with an extended family

member before it can obtain permanent custody of the child.” Id. at ¶ 16. See also In re

Warren, 5th Dist. No. 2007CA00054, 2007-Ohio-5703, ¶ 23 (“[T]he Department’s duty
Ross App. No. 11CA3289 19

to use reasonable efforts applies only to efforts to avoid removal of a child from her

home or to reunify the child with her family, following removal. The Department is under

no statutory duty to make reasonable efforts to place a child with relatives although

relative placement is to be investigated.”); In re D.N., 2011-Ohio-3395, ¶ 24.

{¶44} We also note that the trial court determined that the Agency did make

reasonable efforts to place Child with a relative. As indicated above, the Agency

attempted to contact A.B. to investigate potentially placing Child with him, but A.B. was

not cooperative. Additionally, the caseworker was unable to obtain information

regarding A.B. from Franklin County officials, despite A.B.’s assertion that the Agency

could obtain information about him from “Franklin County.” The evidence also shows

that the Agency contacted one of Child’s aunts. The aunt was initially cooperative, but

then she cancelled a scheduled home visit due to illness. And the Agency was unable

to reschedule the visit. Additionally, the record indicates that the Agency investigated

placing Child with her maternal grandmother. Child’s maternal grandmother, however,

ultimately decided that she did not want Child placed in her care. Thus, there was

competent, credible evidence supporting the trial court’s finding that the Agency “made

reasonable efforts” to place Child with a relative. Accordingly, Father’s argument that

the trial court erred in failing to find that the Agency did not make reasonable efforts to

investigate A.B. as a potential placement for Child lacks merit.

C.

{¶45} Father also argues that the trial court erred by not placing Child with A.B.

Father’s argument, however, misstates the nature of the proceeding before the trial
Ross App. No. 11CA3289 20

court. After Child was adjudicated an abused child as a result of being born addicted to

opiates, the Agency moved for permanent custody of Child under R.C. 2151.413.

{¶46} As discussed in Father’s first assignment of error, the trial court could

grant the Agency’s motion for permanent custody under R.C. 2151.414(B)(1) if it

determined by clear and convincing evidence that: (1) one of the four conditions

outlined in R.C. 2151.414(B)(1)(a)-(d) applied; and (2) it was in the child’s best interest.

See R.C. 2151.414(B)(1); In re McCain, 2007-Ohio-1429, ¶ 13. And as detailed above,

there was competent, credible evidence demonstrating that R.C. 2151.414(B)(1)(a)

applied and that permanent custody was in Child’s best interest. Thus, Father’s

argument that the trial court erred by not placing Child with A.B. is not applicable to the

issues the trial court had to determine at the July 14, 2011 hearing. As we concluded

above, the trial court did not err in granting the Agency’s motion for permanent custody

of Child. Accordingly, Father’s argument that the trial court erred by not placing Child

with A.B. lacks merit.

D.

{¶47} Father contends that the trial court erred in finding that A.B. introduced all

relevant information and evidence through his testimony at the July 14, 2011 hearing.

At the hearing, A.B. testified regarding his desire to have Child placed in his care. A.B.

also testified about his living and financial circumstances. Father argues that additional

information would be available had the Agency conducted its home investigation of A.B.

On appeal, however, Father does not indicate what additional information could have

been obtained at the hearing had the Agency conducted a home investigation of A.B.
Ross App. No. 11CA3289 21

Consequently, we cannot conclude that the trial erred in finding that A.B. introduced all

relevant information and evidence when he testified at the July 14, 2011 hearing.

E.

{¶48} Father contends that the trial court erred in refusing to grant a continuance

on two occasions so that A.B.’s home could be considered as a placement option for

Child.

{¶49} We review a trial court’s decision regarding whether or not to grant a

motion for a continuance under an abuse of discretion standard. Labonte v. Labonte,

4th Dist. No. 07CA15, 2008-Ohio-5086, ¶ 9. “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.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). “[W]hen applying the abuse of discretion standard, we may not

substitute our judgment for that of the trial court.” Labonte at ¶ 9, citing Berk v.

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1993).

{¶50} “Our review of a denial of a motion for a continuance requires us to ‘apply

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.’” 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.

{¶51} “In evaluating a motion for a continuance, a court should note, inter alia:

the length of the delay requested; whether other continuances have been requested

and received; the inconvenience to litigants, witnesses, opposing counsel and the court;
Ross App. No. 11CA3289 22

whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; whether the defendant contributed to the circumstance which

gives rise to the request for a continuance; and other relevant factors, depending on the

unique facts of each case.” State v. Unger, 67 Ohio St.2d 65, 67-68, 423 N.E.2d 1078

(1981). Although Unger was a criminal matter, appellate courts have also applied these

factors in civil cases. See, e.g., King v. Kelly, 4th Dist. No. 02CA42, 2003-Ohio-4412, ¶

11; Henson v. Highland Dist. Hosp., 143 Ohio App.3d 699, 707, fn. 4, 758 N.E.2d 1166

(4th Dist.2001); Integrated Payment Systems, Inc. v. A & M 87th Inc., 8th Dist. Nos.

91454 & 91473, 2009-Ohio-2715, ¶ 73; Truex v. Truex, 179 Ohio App.3d 188, 2008-

Ohio-5690, 901 N.E.2d 259 (5th Dist.) ¶ 15.

{¶52} On July 7, 2011, Father moved to continue the July 14, 2011 hearing so

that the Agency could investigate A.B. as a possible placement option. The magistrate

denied this motion, but she ordered the Agency to investigate A.B. as a placement

option. The record indicates that the investigation was not completed prior to the July

14, 2011 hearing. At the beginning of the July 14, 2011 hearing, Father moved for a

continuance. However, Father’s stated reason for requesting the continuance did not

pertain to the Agency investigating A.B. as a placement option. Instead, Father sought

a continuance so that A.B. could file a motion for legal custody of Child. The magistrate

denied this continuance as well.

{¶53} As the trial court noted, the magistrate was not aware of the Agency’s

earlier attempts to investigate A.B. when she ordered the investigation on July 7, 2011.

Additionally, the trial court found that A.B. was not cooperative when the Agency

contacted him to investigate him as a placement option for Child shortly after Child’s
Ross App. No. 11CA3289 23

birth. Considering these facts, an additional continuance so that the Agency could

investigate A.B., who did not cooperate with the Agency in the first place, was

unwarranted. Moreover, the trial court determined that A.B. testified at the July 14,

2011 hearing and provided information that the Agency would discover through any

potential investigation. And Father has not articulated what additional information could

have been introduced at the hearing had the Agency conducted the home investigation.

Therefore, Father did not suffer any prejudice from the denial of the continuance.

{¶54} Thus, we conclude that the trial court did not abuse its discretion when it

denied Father’s motions for a continuance.

F.

{¶55} Father also argues that the trial court erred by failing to hold the Agency in

contempt for disobeying the court’s order that the Agency conduct a home investigation

of A.B. as a potential placement option for Child. Although Father did not move to hold

the Agency in contempt before the trial court, Father argues that the trial court should

have sua sponte held the Agency in contempt.

{¶56} Because Father could have argued to the trial court that the Agency

should be held in contempt, but he chose not to, we review his argument under a plain

error standard. See Rocky v. Rockey, 4th Dist. No. 08CA4, 2008-Ohio-6525, ¶ 37,

quoting Sprouse v. Miller, 4th Dist. No. 07CA32, 2008-Ohio-4284, ¶ 11 (“It is a cardinal

rule of appellate procedure that ‘an appellate court will not consider any error which

could have been brought to the trial court’s attention, and hence avoided or otherwise

corrected.’”).
Ross App. No. 11CA3289 24

{¶57} We conclude that the trial court did not commit plain error by failing to hold

the Agency in contempt. As indicated above, the magistrate was not aware of the

Agency’s previous efforts to investigate A.B. as a placement option, and the trial court

found that A.B. did not cooperate with the Agency when it contacted him shortly after

Child’s birth. This implies that, had the magistrate been aware of these facts, she would

not have issued the July 7, 2011 order to investigate A.B. in the first place. Additionally,

the trial court determined that the Agency used reasonable efforts to investigate A.B. (in

addition to other members of Child’s extended family). Finally, the trial court determined

that A.B. provided the information that the Agency would discover through any potential

investigation when A.B. testified at the July 14, 2011 hearing. Therefore, Father

suffered no prejudice as a result of the Agency’s failure to investigate A.B. as a

placement prior to the hearing. Consequently, the trial court’s failure to find the Agency

in contempt for not investigating A.B. as a placement option does not amount to plain

error.

G.

{¶58} For all the above reasons, we conclude Father’s arguments regarding

“issues” related to A.B. lack merit. Consequently, we overrule Father’s second

assignment of error.

IV.

{¶59} In his third assignment of error, Father contends that he suffered from

ineffective assistance of counsel.

{¶60} “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
Ross App. No. 11CA3289 25

counsel.” In re A.C.H., 4th Dist. No. 11CA2, 2011-Ohio-5595, ¶ 50, citing In re Wingo,

143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th Dist.2001), in turn citing In re Heston,

129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998). “‘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.’” Wingo at 666, quoting Heston at 827.

{¶61} “To reverse a trial court’s judgment based upon a claim of ineffective

assistance, the [appellant] must show, first, that counsel’s performance was deficient

and, second, that the deficient performance prejudiced the defense so as to deprive the

[appellant] of a fair trial.” In re A.C.H., 2011-Ohio-5595, ¶ 51, citing 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, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 108; State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989). “Failure to satisfy either prong is fatal as the

[appellant’s] burden requires proof of both elements.” State v. Hankison, 4th Dist. No.

09CA3326, 2010-Ohio-4617, ¶ 104, quoting State v. Hall, 4th Dist. No. 07CA837, 2007-

Ohio-6091, ¶ 11.

{¶62} In its September 15, 2011 Entry, the trial court stated, “[Father’s trial

counsel] did not raise the issue of [the Agency’s] failure to take any action [regarding

investigating A.B. as a placement option for Child] after the July 7, 2011 order or make

any objections or request for continuance based on that issue.” September 15, 2011

Entry at 2. At the July 14, 2011 hearing, Father’s trial counsel sought a continuance so

that A.B. could move for custody of Child. Father’s trial counsel did not, however, raise
Ross App. No. 11CA3289 26

the issue of the Agency’s investigation of A.B. as a placement option for Child.

Consequently, Father argues that he suffered from ineffective assistance of counsel

based on his trial counsel’s failure to raise the investigation issue.

{¶63} Even assuming trial counsel’s failure to raise the investigation issue after

the July 7, 2011 order constituted deficient performance, Father cannot demonstrate the

prejudice necessary to prevail on an ineffective assistance of counsel claim. As noted

above, the magistrate was unaware of the Agency’s previous attempt to investigate A.B.

when she issued the July 7, 2011 order. This indicates that the magistrate would not

have ordered the investigation on July 7, 2011 had she been aware of the Agency’s

previous attempt to investigate A.B. Moreover, the trial court determined that A.B.

presented all relevant information through his testimony at the July 14, 2011 hearing.

And finally, Father has not indicated what additional information the Agency could have

obtained had it conducted a home investigation of A.B. prior to the July 14, 2011

hearing. As a result, Father was not prejudiced by his trial counsel’s failure to raise the

investigation issue after July 7, 2011. Consequently, Father’s ineffective assistance

claim must fail.

{¶64} Accordingly, we overrule Father’s third assignment of error.

V.

{¶65} Having overruled all of Father’s assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED.
Ross App. No. 11CA3289 27

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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
Ross County Court of Common Pleas, Juvenile Division, 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. Exceptions.

Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________
Roger L. Kline, 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.