[Cite as In re B.H., 2014-Ohio-5790.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: B.H. : Hon. William B. Hoffman, P.J.
: Hon. W. Scott Gwin, J.
: Hon. Sheila G. Farmer, J.
:
:
: Case No. 14-CA-53
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Juvenile Division, Case
No. 13 AB 0097
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 29, 2014
APPEARANCES:
For - Appellant For - Appellee
KRISTI R. MCANAUL JULIE BLAISDELL
660 Hill Rd. N. 239 West Main Street, Ste. 101
P.O. Box 220 Lancaster, OH 43130
Pickerington, OH 43147
For - Father Guardian ad Litem
DAVID A. TAWNEY ANGELA J. SEIMER
117 West Main Street, Ste. 208 124 West Main Street, Ste. 201
Lancaster, OH 43130 Lancaster, OH 43130
[Cite as In re B.H., 2014-Ohio-5790.]
Gwin, J.
{¶1} Appellant-mother Ashley Van Atta appeals the August 21, 2014,
Judgment Entry of the Fairfield County Court of Common Pleas, Juvenile Court
Division, which terminated her parental rights with respect to her minor child, B.H. (b.
Apr. 17, 2013) and granted permanent custody of the child to appellee, Fairfield County
Child Protective Services (hereinafter “FCCPS”).
Facts and Procedural History
{¶2} A Complaint for Dependency was filed on May 1, 2013, alleging that B.H.
was a dependent minor pursuant to R.C. 2151.04(C). A shelter care hearing was
conducted on May 1, 2013, and B.H. was placed in the temporary custody of FCCPS.
Neither party objected to the jurisdiction of the trial court at the time of the trial on the
dependency complaint. Further, Mother testified that she went to Fairfield Medical
Center when she went into labor for B. H. and then was transferred to Ohio State
University Hospital where she gave birth to the child. Mother further testified that she
gave a Fairfield County address as her address to Ohio State University Hospital.
{¶3} B. H. has remained in FCCPS' temporary custody since July 11, 2013.
Reviews were conducted concerning the case on September 24, 2013, December 16,
2013, March 6, 2014 and April 22, 2014.
{¶4} On April 22, 2014, FCCPS filed a motion requesting that B. H. be placed
in the permanent custody of FCCPS. A Pretrial concerning the pending motion was held
on July 2, 2014.
Fairfield County, Case No. 14-CA-53 3
{¶5} The following facts concerning appellant-mother were found by the trial
court as established during the July 22, 2014 evidentiary hearing on the motion for
permanent custody.
{¶6} Prior to the commencement of the hearing, the Court noted for the record
that Mother, through counsel, had filed a "Motion of [Mother] for Awarding Permanent
Custody of the Minor Child to her Mother" on July 18, 2014. The Court noted that this
Motion was not served on all the parties to the case and was not filed at least seven (7)
days prior to the hearing as required by the Juvenile Rules and Civil Rules of
Procedure. The trial court further found, the Motion is not appropriate because the
motion asks the Court to place B.H. in the "permanent custody" of an individual. The
trial court ruled that R.C. 2151.413 does not allow a parent to file a motion for
permanent custody, but specifically reserves that right to a "public children services
agency or private child placing agency.” Further, R.C. 2151.413 only permits permanent
custody to be granted to an agency not to an individual. Therefore, the trial court
overruled the motion filed by Mother. However, the court noted that should the court not
grant the motion for permanent custody filed by FCCPS, the Court would then schedule
Mother's motion for further proceedings.
{¶7} Brad Heft is the alleged father of B. H.1 Paternity has not been
established. Brad Heft is 32 years old. Throughout his adult life, Brad Heft has been
incarcerated 31 times in the Fairfield County jail. He has been incarcerated in a state
penal institution twice. He has also been incarcerated in a jail in Florida, and in Hocking
County, Ohio. Brad Heft is repeatedly incarcerated, and the repeated incarceration
1
Brad Heft is not a party to this appeal.
Page 2 of 29
Fairfield County, Case No. 14-CA-53 4
prevents Brad Heft from providing care for B.H. Brad Heft admitted that he did not
contact nor did he participate with FCCPS in 2013, even though he was not
incarcerated for much of 2013. There has been no visitation between Brad Heft and B.
H. since approximately May 2013. Brad Heft has abandoned the child. Brad Heft admits
that he is in no position to care for B. H. as of the date of the permanent custody, July
22, 2014.
{¶8} FCCPS developed a case plan to assist Ashley Van Atta to remedy the
problems that caused B. H. to be removed from the home. Ashley Van Atta agreed that
the case plan was reasonable and signed the case plan in May 2013. FCCPS had
concerns about substance abuse issues, parenting issues, stable housing, and
economic stability.
Substance abuse.
{¶9} Mother was referred by FCCPS to American Court Services, a company
that screens for drugs and/or alcohol. During the period in 2013 when Mother was living
in Columbus, Ohio, FCCPS linked her with the Columbus office of American Court
Services to assist in making her screens for drugs and/or alcohol. Despite FCCPS'
efforts, Mother was not compliant with submitting to screens. From May 2013 to
February 2014, Mother missed 15 screens for drugs and/or alcohol. In February 2014,
she became somewhat more compliant with submitting to screens, as she missed only
three screens from February 2014 to July 22, 2014. In December 2013, Mother tested
positive for opiates, morphine, and buprenorphine. Mother has not consistently been
compliant with submitting to random screens for drugs and/or alcohol, and thus has not
consistently been able to demonstrate that she is clean and sober.
Fairfield County, Case No. 14-CA-53 5
{¶10} Mother was referred by FCCPS to The Recovery Center, a facility for
treatment services for drug and/or alcohol issues. Mother was also referred by FCCPS
to the Fairfield County Family Court program, a drug court program for parents with
substance abuse issues involved with FCCPS. Mother declined participation in the
Fairfield County Family Court Program. Mother’s substance abuse issues concern
opiate use and marijuana use.
{¶11} Beginning in May/June, 2013, Mother engaged in drug and/or alcohol
recovery services at The Recovery Center. She completed her assessment in June
2013, and her first session with her individual counselor was August 13, 2013. It was
recommended that she meet with her counselor, Jodi Clutter, weekly. The Recovery
Center diagnosed Mother as being opioid dependent, marijuana dependent, and having
anxiety.
{¶12} Mother’s attendance for individual counseling at The Recovery Center is
as follows,
August 13, 2013- - Mother attended the appointment;
September 9, 2013 - Mother did not show up for the appointment;
September 16, 2013 - Mother did not show up for the appointment;
October 1, 2013 - Mother cancelled;
October 8, 2013 - Mother did not show up for the appointment;
October 15, 2013 - Mother cancelled;
October 28, 2013 - Mother attended the appointment;
November 8, 2013 - Mother attended the appointment;
November 15, 2013 - Mother cancelled;
Fairfield County, Case No. 14-CA-53 6
November 19, 2013 - Mother attended the appointment;
November 26, 2013 - Mother attended the appointment;
December 3, 2013 - Mother attended the appointment;
December 10, 2013 - Mother attended the appointment
December 17, 2013- Mother attended the appointment;
December 23, 2013 - Mother attended the appointment;
December 30 2013 - Mother attended the appointment;
January 7, 2014 - Mother cancelled (bad weather);
January 14, 2014- Recovery Center had to cancel the appointment;
January 21, 2014 - Mother attended the appointment;
January 28, 2014 - Mother attended the appointment;
February 3, 2014 - Mother cancelled (doing her taxes);
February 7, 2014 - Mother attended the appointment;
February 17, 2014 - Mother attended the appointment;
February 24, 2014 - Mother attended the appointment;
March 3, 2014 – Mother attended the appointment;
March 10, 2014 - Mother cancelled (did not feel well);
March 17, 2014 - Mother attended the appointment;
March 24, 2014 - Mother attended the appointment;
March 31, 2014 - Mother cancelled;
April 14, 2014 - Mother missed the appointment (did not have a
ride);
April 21, 2014 - Mother attended the appointment;
Fairfield County, Case No. 14-CA-53 7
April 28, 2014 - Mother attended the appointment;
May 12, 2014 - Mother attended the appointment;
May 30, 2014 - Mother did not show up for the appointment;
June 9, 2014 - Mother attended the appointment;
June 16, 2014 - Recovery Center had to cancel the appointment;
June 30, 2014 - Mother arrived late for the appointment, but was
seen by Counselor Clutter;
July 17, 2014 - Mother arrived late for the appointment and was not
seen by Counselor Clutter.
{¶13} Mother’s attendance for group counseling at The Recovery Center is as
follows,
May 6, 2014 - Mother attends her first Women's group at the
Recovery Center;
May 13, 2014 - Mother is late for group - The Recovery Center
offers to allow her to stay for the group, although she will not be given
credit for attending it, Mother leaves;
May 20, 2014 - Mother attends group;
May 27, 2014 - Mother cancels;
June 3, 2014 - Mother attends group;
June 10, 2014 - Mother does not show up for group;
June 17, 2014 – Mother attends group;
June 24, 2014 - Mother attends group;
July 1, 2014 - Mother attends group;
Fairfield County, Case No. 14-CA-53 8
July 8, 2014 - Mother attends group;
July 15, 2014- Mother attends group
{¶14} The trial court found it noteworthy that while Mother was missing
appointments with Jodi Clutter at The Recovery Center, she was attending
appointments at The Recovery Center to obtain and maintain her prescription for
suboxone. It is also noteworthy that FCCPS offered to facilitate transportation for
Mother to The Recovery Center appointments, but Mother did not utilize this
transportation.
{¶15} During the appointment of October 28, 2013, The Recovery Center
stressed to Mother the importance of her attending. The parties entered into an
agreement at this time. This contract indicated that if Mother were to miss any further
appointments at The Recovery Center, she could be unsuccessfully discharged from
the program.
{¶16} Mother has continued to miss appointments at The Recovery Center, but
Jodi Clutter cannot discharge Mother from the program as long as Mother is in the
suboxone program at The Recovery Center. The suboxone program at The Recovery
Center has its own requirements for maintaining participation in its program and it
appears that Mother has violated those requirements also, although no action had been
taken to remove her from the suboxone program as of July 22, 2014. Mother’s tenuous
status with The Recovery Center's counseling program and suboxone program was
found to be relevant to the trial court.
{¶17} In addition to attendance issues, Mother has not utilized the counseling
that she has attended. Mother after 11 months of recovery treatment, is still wavering
Fairfield County, Case No. 14-CA-53 9
between the pre-contemplation stage of change and the contemplation stage of change.
Mother continues to surround herself with people who are identified as triggers for her
drug use. These people include Brad Heft, Bernadine Heft, Alice Peters (Mother’s
mother) and Mother’s brother.
{¶18} Mother has not developed a sober support system, nor has she developed
the tools necessary for long-term sobriety. Mother is not being completely honest with
her counselor, as Mother has violated court orders by having contact with Brad Heft on
four occasions in 2014, but has only mentioned one of the occasions to her counselor.
The trial court found that Mother has not successfully completed treatment for her drug
and/or alcohol issues and has not successfully complied with this aspect of the case
plan.
Housing.
{¶19} Mother has obtained appropriate housing in February 2014. Metropolitan
Housing has strict rules on who may live in this residence, Since February 2014, Mother
has placed her housing in jeopardy by allowing Brad Heft's mother, Bernadine Heft, to
reside with her, and only recently taking measures to add Bernadine Heft to her lease.
Mother has successfully obtained housing, but is not complying with what is necessary
to maintain housing. In addition, the water for her residence has recently been turned
off. Mother’s solution to her financial issues with the water department is to have
Bernadine Heft pay a portion of the bill and to solicit a local church to pay the remainder
of the bill. Mother has not taken any personal responsibility as to solving her water
issue.
Fairfield County, Case No. 14-CA-53 10
{¶20} The trial court found Mother has not fully complied with this aspect of her
case plan and all of this information is relevant to the Court.
Employment
{¶21} Mother is unemployed. FCCPS referred Mother to the Work Net program
to assist her with job seeking skills and provide her with leads on jobs. FCCPS further
offered to provide transportation to Mother for her to look for a job.
{¶22} Mother reports that she has "too many appointments" to attend and
therefore it is difficult for her to have a job. Upon review of her appointments, it appears
that she has approximately six (6) hours a week of appointments. None of these
appointments are on Saturday or Sunday, nor are any in the evening.
{¶23} Mother has not been employed in 2014. Mother cannot financially provide
for B.H.
{¶24} The trial court concluded that Mother does not have stable economic
resources to provide for the basic needs of B. H. and has not successfully complied with
this aspect of the case plan.
Parenting skills.
{¶25} FCCPS wanted Mother to obtain parenting education. Mother started
parenting education with Mike Selegue of Mid-Ohio Psychological Services, but only
attended five out of ten sessions. Mother has not attended parenting education since
May 19, 2014.
Fairfield County, Case No. 14-CA-53 11
Violation of court orders.
{¶26} Mother has violated the no contact order with Brad Heft on four (4)
occasions. Mother acknowledged that she was aware of the no contact order on each of
the four times she had contact with Brad Heft.
Visitation.
{¶27} FCCPS wanted Mother to consistently visit with B. H. and Mother has
maintained weekly visits with the child.
Guardian Ad Litem.
{¶28} On July 15, 2014, Angela Selmer filed the report of Guardian Ad Litem,
which supported FCCPS' motion for permanent custody of B. H.
{¶29} Following the presentation of all other evidence and testimony to the
Court, the Guardian Ad Litem was cross-examined as to her report by FCCPS and
attorney for alleged Father.
{¶30} The Guardian Ad Litem testified that she had attempted to contact the
alleged father at the beginning of the case but had only recently been able to speak to
him while he was incarcerated.
{¶31} The Guardian ad Litem further testified that the allegations of the
Complaint were that the child was born addicted to opiates.
{¶32} The Guardian ad Litem testified that her opinion had not changed with
regard to the granting of the Motion for Permanent Custody and that she still supported
the Motion.
{¶33} At the conclusion of the hearing, alleged Father, through his attorney,
requested that the Court modify the previous order requiring the parents to have no
Fairfield County, Case No. 14-CA-53 12
contact with each other. The Court found this request to not be well taken and thereby
denied the same.
{¶34} The Magistrate’s Findings of Fact and Conclusions of Law were filed
August 21, 2014. By an entry filed the same date, the court adopted the magistrate’s
decision granting FCCPS’ request for a permanent custody of B.H. to the agency.
Assignments of Error
{¶35} On appeal, mother asserts the following assignments of error:
{¶36} “I. THE TRIAL COURT VIOLATED ASHLEY VAN ATTA'S
CONSTITUTIONAL RIGHTS OF DUE PROCESS WHEN IT REFUSED TO SET HER
MOTION FOR CUSTODY TO MATERNAL GRANDMOTHER FOR HEARING OR
ALLOW TESTIMONY REGARDING THE SUITABILITY OF MATERNAL
GRANDMOTHER AS A CUSTODIAN.
{¶37} “II. THE TRIAL COURT ERRED AND ABUSED IT'S DISCRETION IN
FAILING TO SCHEDULE FOR HEARING MOTHER'S MOTION FOR CUSTODY TO
MATERNAL GRANDMOTHER.
{¶38} “III. THE TRIAL COURT ERRED AND ABUSED IT'S DISCRETION IN
FAILING TO PROPERLY ENGAGE IN A BEST INTEREST DETERMINATION AS
REQUIRED BY R.C. 2151.414 (D) REGARDING WHETHER A LEGALLY SECURE
PLACEMENT COULD BE ACHIEVED WITHOUT A GRANT OF PERMANENT
CUSTODY TO THE AGENCY.
{¶39} “IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
Fairfield County, Case No. 14-CA-53 13
BEST INTEREST OF B.H. FOR PERMANENT CUSTODY TO BE GRANTED TO
FAIRFIELD COUNTY CHILD PROTECTIVE SERVICES.
{¶40} “V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT B.H. CANNOT BE
PLACED WITH ASHLEY VAN ATTA WITHIN A REASONABLE TIME OR SHOULD
NOT BE PLACED WITH ASHLEY VAN ATTA.
{¶41} “VI. THE APPELLANT WAS PREJUDICIALLY DEPRIVED OF HER OHIO
CONSTITUTIONAL RIGHT TO A FAIR TRIAL DUE TO THE INEFFECTIVE
ASSISTANCE OF APPOINTED COUNSEL.
{¶42} “VII. THE TRIAL COURT ERRED IN ITS STATEMENT IN ITS
CONCLUSIONS OF LAW IN FINDING BY CLEAR AND CONVINCING EVIDENCE
THAT OHIO REVISED CODE SECTION 215.14(E)(4) APPLIED TO ASHLEY VAN
ATTA.”
Burden of Proof
{¶43} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a
parent's rights has been described as, “* * * the family law equivalent to the death
penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th
Dist.1991). Therefore, parents “must be afforded every procedural and substantive
protection the law allows.” Id.
Fairfield County, Case No. 14-CA-53 14
{¶44} An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
convincing evidence” as “[t]he measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986).
Standard of Review
{¶45} The Ohio Supreme Court has delineated our standard of review as
follows,
Where the degree of proof required to sustain an issue must be
clear and convincing, a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to
satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,
12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.
Rimenik, 115 Ohio St. 11, 152 N.E. 14.
Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will
affirm the trial court's findings “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.” In re Adkins, 5th
Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557,
¶17.
Fairfield County, Case No. 14-CA-53 15
{¶46} In Cross, the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the impression
which the testimony of the witnesses makes upon the trier of facts, and the
character of the testimony itself. Credibility, intelligence, freedom from bias or
prejudice, opportunity to be informed, the disposition to tell the truth or
otherwise, and the probability or improbability of the statements made, are all
tests of testimonial value. Where the evidence is in conflict, the trier of facts
may determine what should be accepted as the truth and what should be
rejected as false. See Rice v. City of Cleveland, 114 Ohio St. 299, 58 N.E.2d
768.
161 Ohio St. at 477-478. (Emphasis added).
Requirements for Permanent Custody Awards
{¶47} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of
a child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶48} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply:
Fairfield County, Case No. 14-CA-53 16
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
parents within a reasonable time or should not be placed with the child's
parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period, or the
child has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
Fairfield County, Case No. 14-CA-53 17
{¶49} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Failure to timely object and to file a transcript in the trial court
{¶50} We first must address Mother’s failure to timely file objections to the
magistrate’s decision of August 21, 2014 and Mother’s failure to present a transcript to
the trial court for its review of Mother’s objections to the magistrate’s decision. Mother
filed the transcripts of the hearings in this court with her appeal. The trial court never
had the opportunity to review the transcript when considering Mother’s objections to the
magistrate’s decision.
{¶51} Under Juv. R. 40(E)(3)(a), a party must file written objections to a
magistrate’s decision within fourteen days. Furthermore, Juv. R. 40(E)(3)(b) provides
that “[a] party shall not assign as error on appeal the court’s adoption of any finding of
fact or conclusion of law unless the party has objected to that finding or conclusion
under this rule.”
{¶52} Juv. R. 40 deals with matters referred to magistrates. Juv.R.40(D)(2)
states in relevant part,
(2) Magistrate’s order; motion to set aside magistrate’s order.
(a) Magistrate’s order.
***
Fairfield County, Case No. 14-CA-53 18
(b) Motion to set aside magistrate’s order. Any party may file a motion with
the court to set aside a magistrate’s order. The motion shall state the
moving party’s reasons with particularity and shall be filed not later than
ten days after the magistrate’s order is filed. The pendency of a motion to
set aside does not stay the effectiveness of the magistrate’s order, though
the magistrate or the court may by order stay the effectiveness of a
magistrate’s order.
(3) Magistrate’s decision; objections to magistrate’s decision.
***
(b) Objections to magistrate’s decision.
(i) Time for filing. A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision,
whether or not the court has adopted the decision during that fourteen-day
period as permitted by Juv.R. 40(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days
after the first objections are filed. If a party makes a timely request for
findings of fact and conclusions of law, the time for filing objections begins
to run when the magistrate files a decision that includes findings of fact
and conclusions of law.
(ii) Specificity of objection. An objection to a magistrate’s decision
shall be specific and state with particularity all grounds for objection.
(iii) Objection to magistrate’s factual finding; transcript or affidavit.
An objection to a factual finding, whether or not specifically designated as
Fairfield County, Case No. 14-CA-53 19
a finding of fact under Juv.R. 40(D)(3)(a)(ii), shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. With
leave of court, alternative technology or manner of reviewing the relevant
evidence may be considered. The objecting party shall file the transcript or
affidavit with the court within thirty days after filing objections unless the
court extends the time in writing for preparation of the transcript or other
good cause. If a party files timely objections prior to the date on which a
transcript is prepared, the party may seek leave of court to supplement the
objections.
(iv) Waiver of right to assign adoption by court as error on appeal.
Except 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).
{¶53} In the case at bar, the magistrates’ decision was filed August 21, 2014. In
Harvey v. Hwand, 103 Ohio St.3d 16, 2004-Ohio-4112, 812 N.E.2d 1275, the Ohio
Supreme Court reiterated,
Our holding is also consistent with our decision in Duganitz v. Ohio Adult
Parole Auth. (2001), 92 Ohio St.3d 556, 557, 751 N.E.2d 1058. We there held
that Civ.R. 6(E) does not apply to extend the time to file objections to a
magistrate’s decision issued pursuant to Civ.R. 53(E). Civ.R. 53(E) provides a
Fairfield County, Case No. 14-CA-53 20
party with the opportunity to file written objections to a magistrate’s decision
“within fourteen days of the filing of the decision.” Civ.R. 53(E)(3)(a).
Id. at ¶17. Thus, Mother had until September 1, 2014 to file a motion to set aside the
magistrate’s decision. She did not. Mother had until September 5, 2014 to file her
objection to the magistrate’s decision. Mother did not file an objection.
{¶54} In addition, Mother failed to provide a transcript of the magistrate’s to the
trial court.
{¶55} This Court has held, “where an appellant fails to provide a transcript of the
original hearing before the magistrate for the trial court's review, the magistrate's
findings of fact are considered established and may not be attacked on appeal.” Doane
v. Doane, 5th Dist. Guernsey No. 00CA21, 2001 WL 474267(May 2, 2001); State v.
Leite, 5th Dist. Tuscarawas No.1999AP090054, 2000 WL 502819(Apr. 11, 2000);
Fogress v. McKee, 5th Dist. Licking No. 99CA15,1999 WL 668580(Aug. 11, 1999); and
Strunk v. Strunk, 5th Dist. Muskingum No. CT96-0015, 1996 WL 787981(Nov. 27,
1996). When a party objecting to a magistrate's decision has failed to provide the trial
court with the evidence and documents by which the trial court could make a finding
independent of the report, the appellate court is precluded from considering the
transcript of the hearing submitted with the appellate record. State ex rel. Duncan v.
Chippewa Twp. Trustees, 73 Ohio St.3d 728, 1995-Ohio-272.
{¶56} Accordingly, we review Mother’s assignments of error only to analyze
whether the trial court abused its discretion in reaching specific legal conclusions based
upon the established facts. He v. Zeng, 5th Dist. Licking No. 2009-CA-00060, 2010-
Ohio-2095, ¶23.
Fairfield County, Case No. 14-CA-53 21
{¶57} We note that authority exists in Ohio law for the proposition that
appellant’s failure to object to the magistrate’s decision does not bar appellate review of
“plain error.” See R.G. Real Estate Holding, Inc. v. Wagner, 2nd Dist. Montgomery App.
No. 16737, 1998 WL 199628(Apr. 24, 1998); In re Ortego, 5th Dist. Tuscarawas No.
1999AP05003, 2000 WL 330069(Mar. 8, 2000); Batsch v. Tress, 11th Dist. Portage No.
2000-P-0022, 2001-Ohio-4343. However, the Supreme Court has cautioned against the
over application of plain error analysis,
The plain error doctrine originated as a criminal law concept. In
applying the doctrine of plain error in a civil case, reviewing courts must
proceed with the utmost caution, limiting the doctrine strictly to those
extremely rare cases where exceptional circumstances require its
application to prevent a manifest miscarriage of justice, and where the
error complained of, if left uncorrected, would have a material adverse
effect on the character of, and public confidence in, judicial proceedings.
Schade, 70 Ohio St.2d at 209, 24 O.O.3d at 317, 436 N.E.2d at 1003;
LeFort v. Century 21–Maitland Realty Co. (1987), 32 Ohio St.3d 121, 124,
512 N.E.2d 640, 643; Cleveland Elec. Illum. Co. v. Astorhurst Land Co.
(1985), 18 Ohio St.3d 268, 275, 18 OBR 322, 327–328, 480 N.E.2d 794,
800.
Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d
1099. The plain error doctrine has been used with regard to permanent custody
proceedings. In re Harris, 5th Dist. Richland No. CA-2350, 1986 WL 4768(Apr. 14,
1986).
Fairfield County, Case No. 14-CA-53 22
Mother’s Fifth Assignment of Error: Parental Placement within a Reasonable
Time- R.C. 2151.414(B) (1) (a).
{¶58} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed
with the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a
finding under R.C. 2151.414(E) (1) – (15), the court shall determine the children cannot
or should not be placed with the parent. A trial court may base its decision that a child
cannot be placed with a parent within a reasonable time or should not be placed with a
parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of
one factor alone will support a finding that the child cannot be placed with the parent
within a reasonable time. See In re: William S., 75 Ohio St.3d 95, 1996-Ohio-182, 661
N.E.2d 738; In re: Hurlow, 4th Dist. No. 98 CA 6, 1998 WL 655414(Sept. 21, 1998); In
re: Butcher, 4th Dist. No. 1470, 1991 WL 62145(Apr 10, 1991).
{¶59} R.C. 2151.414(E) sets forth factors a trial court is to consider in
determining whether a child cannot be placed with either parent within a reasonable
period of time or should not be placed with the parents. Specifically, Section (E)
provides, in pertinent part, as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the
court shall consider all relevant evidence. If the court determines, by clear
and convincing evidence, at a hearing held pursuant to division (A) of this
Fairfield County, Case No. 14-CA-53 23
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code 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:
(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 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;
Fairfield County, Case No. 14-CA-53 24
(3) The parent committed any abuse as described in section
2151.031 of the Revised Code against the child, caused the child to suffer
any neglect as described in section 2151.03 of the Revised Code, or
allowed the child to suffer any neglect as described in section 2151.03 of
the Revised Code between the date that the original complaint alleging
abuse or neglect was filed and the date of the filing of the motion for
permanent custody;
(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;
(5) The parent is incarcerated for an offense committed against the
child or a sibling of the child;
(6) The parent has been convicted of or pleaded guilty to an
offense under division (A) or (C) of section 2919.22 or under section
2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04,
2905.052907.07, 2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23,
2907.252907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,
2911.02, 2911.11, 2911.12,2919.12, 2919.24, 2919.25, 2923.12, 2923.13,
2923.161, 2925.02, or 3716.11 of the Revised Code and the child or a
sibling of the child was a victim of the offense or the parent has been
convicted of or pleaded guilty to an offense under section 2903.04 of the
Revised Code, a sibling of the child was the victim of the offense, and the
Fairfield County, Case No. 14-CA-53 25
parent who committed the offense poses an ongoing danger to the child or
a sibling of the child.
(7) The parent has been convicted of or pleaded guilty to one of the
following:
***
(8) The parent has repeatedly withheld medical treatment or food
from the child when the parent has the means to provide the treatment or
food, and, in the case of withheld medical treatment, the parent withheld it
for a purpose other than to treat the physical or mental illness or defect of
the child by spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two
or more times due to alcohol or drug abuse and has rejected treatment
two or more times or refused to participate in further treatment two or
more times after a case plan issued pursuant to section 2151.412 of the
Revised Code requiring treatment of the parent was journalized as part of
a dispositional order issued with respect to the child or an order was
issued by any other court requiring treatment of the parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 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
Fairfield County, Case No. 14-CA-53 26
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.
(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 or the dispositional hearing.
(13) The parent is repeatedly incarcerated, and the repeated
incarceration prevents the parent from providing care for the child.
(14) The parent for any reason is unwilling to provide food, clothing,
shelter, and other basic necessities for the child or to prevent the child
from suffering physical, emotional, or sexual abuse or physical, emotional,
or mental neglect.
(15) The parent has committed abuse as described in section
2151.031 of the Revised Code against the child or caused or allowed the
child to suffer neglect as described in section 2151.03 of the Revised
Code, and the court determines that the seriousness, nature, or likelihood
of recurrence of the abuse or neglect makes the child's placement with the
child's parent a threat to the child's safety.
(16) Any other factor the court considers relevant.
{¶60} In the case at bar, the magistrate found,
The Court finds that as to mother, Ashley Van Atta:
Fairfield County, Case No. 14-CA-53 27
Fairfield County Child Protective Services has made reasonable
efforts to prevent the need for placement, to include but not be limited to
the following: case management, visitation, referrals to mental health
treatment and parent education, referrals to Metropolitan Housing, referral
for screening; referral for alcohol/drug treatment at The Recovery Center,
and transportation
However, said services have not and do not prevent the need for
removal of the child from the home of mother or enable the child to return
safely home because:
Limited progress in treatment and parenting classes; missed
screens; violation of court orders including but not limited to no contact
order; failure to secure appropriate/sober support system; failure to
maintain utilities; missed treatment
The Court finds that for the child to remain with or be unified with
mother would be contrary to the welfare of the child, and therefore,
removal continues to be in the best interest of the child. Court finds
Fairfield County Child Protective Services has made reasonable efforts to
reunify the child.
{¶61} As previously noted, Mother’s failure to file an objection to the magistrate’s
decision and a transcript in the trial court constituted a waiver of any alleged error. In re
Ortego, supra.
Fairfield County, Case No. 14-CA-53 28
{¶62} Assuming arguendo that Mother had filed a timely objection and a
transcript to the magistrate’s decision, we would find no error in the trial court’s adoption
of the magistrate’s decision.
{¶63} Based on the evidence submitted at trial, the court properly determined
the best interest of B.H. would be served by the grant of permanent custody to FCCPS
rather than to be placed with the maternal grandparent. There was sufficient evidence
submitted at the hearing to call into question, the relatives' ability to provide a long term,
stable placement for the child.
{¶64} The trial court found that the evidence established that B.H. could not be
placed with appellant-mother within a reasonable period and should not be placed with
her.
{¶65} As set forth in our Statement of Facts, supra the trial court’s findings are
based upon competent credible evidence. The record includes testimony of the
witnesses at trial. The trial court was in the best position to determine the credibility of
the witnesses.
{¶66} The evidence demonstrated the successful efforts appellant-mother had
made in the case to regain custody of her child. On that point, the evidence
demonstrates that any improvement the appellant-mother has made in her life is
tentative and, perhaps, temporary, and that she is at risk of relapse. The trial court
found that, regardless of Mother’s compliance with aspects of his case plan, she was
still not able to be a successful parent to B.H.
{¶67} In the case of In re: Summerfield, Stark App. No. 2005CA00139, 2005-
Ohio-5523, this court found where, despite marginal compliance with some aspects of
Fairfield County, Case No. 14-CA-53 29
the case plan, the exact problems that led to the initial removal remained in existence, a
court does not err in finding the child cannot be placed with the parent within a
reasonable time.
{¶68} Further, substantial compliance with a case plan, in and of itself, does not
prove that a grant of permanent custody to an agency is erroneous. In re Watkins v.
Harris, 9th Dist. Summit No. 17068, 1995 WL 513118(Aug. 30, 1995) at *9. The
dispositive issue is not whether the parent has substantially complied with the case
plan, but rather, whether the parent has substantially remedied the conditions that
caused the child's removal. See, e.g., In re McKenzie, 9th Dist. Wayne No. 95CA0015,
1995 WL 608285(Oct. 18, 1995), 7-8; In re Pittman, 9th Dist. Summit App. No. 20894,
2002-Ohio-2208, ¶ 60; In re R.E.P., 5th Dist. Tuscarawas No. 2011AP050021, 2011 -
Ohio- 5375, ¶56.
{¶69} Based upon the foregoing, as well as the entire record in this case, the
court properly found B.H. could not or should not be returned to the appellant-mother
within a reasonable time. Despite offering numerous services, the appellant-mother was
unable to mitigate the concerns that led to the child's removal.
1). Mother’s first, second and third assignments of error: Relative
Placement.
{¶70} Mother argues in her first, second and third assignments of error that the
trial court erred by not conducting a hearing on her pretrial motion; that the magistrate
erred in not deciding that permanent custody be granted to her mother; and the
magistrate erred in not considering her mother for placement of the child.
Fairfield County, Case No. 14-CA-53 30
{¶71} The grandmother who was allegedly available to provide care for B.H. did
not file a motion for legal custody or placement of B.H. In re Mastin, 9th Dist. Lorain
Nos. 97CA0006743, 97CA006746, 1997 WL 795809(Dec. 17, 1997).
{¶72} The child's best interests are served by the child being placed in a
permanent situation that fosters growth, stability, and security. In re Adoption of
Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055(1991). Accordingly, a court is not
required to favor a relative if, after considering all the factors, it is in the child's best
interest for the agency to be granted permanent custody. In re A.C., 12th Dist. No. CA
2006-12-105, 2007-Ohio-3350 at ¶17; In re Turner, 5th Dist. No. 2006CA00062, 2006-
Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649, 2006-Ohio-6128 at
¶62.
{¶73} During the permanent custody hearing, the court received testimony
concerning relative placement. The trial court heard testimony concerning the maternal
grandmother's living arrangements (T. at 398), financial information (T. at 404), physical
condition (T. at 405; 408), relationship with Mother (T. at 409-412), lack of any contact
ever with B.H. (T. at 417), and her demeanor (T. at 419-420).
{¶74} Specifically, the magistrate noted,
Alice Peters, maternal grandmother, testified that she is now willing
and able to take [B.H.] into her home and provide care for him as he is
older now and she would not have to physically carry him all the time as
she would have had to do when he was an infant. Ms. Peters fails to take
into account that, although [B.H.] is walking at his age, he would still very
much need to and/or want to be carried often as, developmentally, a child
Fairfield County, Case No. 14-CA-53 31
of his age still needs to and wants to be held often. Ms. Peters further
testified that her son helps her around the house by taking out the trash
for her and mowing the grass for her, inferring that she is unable to
complete these tasks without his help due to her health issues. Ms. Peters
further testified she is on a variety of medications she is currently on for
several health problems including suboxone and Xanax. Ms. Peters also
testified that she cannot feel a lot of her feet. These health issues are
concerning to the Court as to Ms. Peters ability to provide the proper care
for [B.H.]. Ms. Peters has not been involved with any aspect of this matter
since the birth of [B.H.] until a couple weeks prior to the hearing on the
permanent custody motion, therefore, she does not have knowledge of the
concerns in this matter. Further, Ms. Peters has never seen [B.H.] since
his discharge from the hospital right after his birth or seen [B.H.] and
Ashley Van Atta together. During her testimony, it was clear to the Court
that Ms. Peters does not see any reason for Ashley Van Atta to not have
custody of [B.H.] and/or complete, unsupervised access to [B.H.]. The
Court therefore has concerns that Ms. Peters would not protect [B.H.] from
either of his parents.
{¶75} This Court has noted,
The willingness of a relative to care for the child does not alter what
a court considers in determining permanent custody. In re Patterson
(1999), 134 Ohio App.3d 119, 129-130, 730 N.E.2d 439, 446-447.(Citing
In re Mastin (Dec. 17, 1997), Lorain App. Nos. 97CA006743 and
Fairfield County, Case No. 14-CA-53 32
97CA006746 at 7). The child being placed in a permanent situation that
fosters growth, stability, and security serves the child's best interests. In re
Adoption of Ridenour (1991), 61 Ohio St.3d 319, 324, 574 N.E.2d 1055.
Accordingly, a court is not required to favor a relative if, after considering
all the factors, it is in the child's best interest for the agency to be granted
permanent custody. In re A.C., 12th Dist. No. CA 2006-12-105, 2007-
Ohio-3350 at ¶ 17; In Re Dylan B., Luna B, Stark App. No.2007-CA-
00362, 2008-Ohio-2283 at ¶ 66; In re Turner, 5th Dist. No.2006CA00062,
2006-Ohio-4906 at ¶ 35; In re Perry, 4th Dist. Nos. 06 CA 648, 06 CA 649,
2006-Ohio-6128 at ¶ 62.
The court must consider all of the elements in R.C. 2151.414(D) as
well as other relevant factors. There is not one element that is given
greater weight than the others pursuant to the statute. In re Schafer, 11
Ohio St.3d 498, 2006-Ohio-5513 at ¶ 56. Schafer made it clear that a trial
court's statutory duty, when determining whether it is in the best interest of
a child to grant permanent custody to an agency, did not include finding by
clear and convincing evidence that no suitable relative was available for
placement. “The statute requires a weighing of all relevant factors, and the
trial court did that in this case. R.C. 2151.414 requires the court to find the
best option for the child once a determination has been made pursuant to
R.C. 2151.414(B)(1)(a) through (d). The statute does not make the
availability of a placement that would not require a termination of parental
rights an all-controlling factor. The statute does not even require the court
Fairfield County, Case No. 14-CA-53 33
to weigh that factor more heavily than other factors.” Schaeffer at 111
Ohio St.3d, 498, 857 N.E.2d 532, 2006-Ohio-5513, at ¶ 64; In Re Dylan
B., Luna B, supra at ¶ 67; In re Avon, 5th Dist. No. 2006-AP-09-0051,
2007-Ohio-1431 at ¶ 26.
In re R.P. and I.S., 5th Dist. Tuscarawas No. 2011AP050024, 2011-Ohio-5378, ¶¶66-
67.
Mother’s fourth assignment of error: The Best Interest of the Child.
{¶76} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
the child as expressed directly by the child or through the child's guardian ad litem, with
due regard for the maturity of the child; (3) the custodial history of the child; 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.
{¶77} The focus of the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d
309, 315, 642 N.E.2d 424(8th Dist.1994). A finding that it is in the best interest of a child
to terminate the parental rights of one parent is not dependent upon the court making a
similar finding with respect to the other parent. The trial court would necessarily make a
Fairfield County, Case No. 14-CA-53 34
separate determination concerning the best interest of the child with respect to the
rights of the mother and the rights of the father.
{¶78} The trial court made findings of fact regarding the children’s best interest.
It is well-established that “[t]he discretion which the juvenile court enjoys in determining
whether an order of permanent custody is in the best interest of a child should be
accorded 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.” In re: Mauzy
Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000), quoting
In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).
{¶79} As an appellate court, we neither weigh the evidence nor judge the
credibility of witnesses. Our role is to determine whether there is relevant, competent
and credible evidence, upon which the fact finder could base its judgment. Cross Truck
v. Jeffries, 5th Dist. Stark No. CA-5758, 1981 WL 6321(Feb. 10, 1982). “Reviewing
courts should accord deference to the trial court’s decision because the trial court has
had the opportunity to observe the witnesses’ demeanor, gestures, and voice inflections
that cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St. 3d
71, 523 N.E.2d 846(1988).
{¶80} In the present case, the trial court's decision indicates it considered the
best interest factors. Upon review of the record, it is clear that the record supports the
trial court's finding that granting the motion for permanent custody is in B.H.’s best
interest. The trial court concluded the child's need for legally secure placement could
not be achieved without awarding permanent custody to FCCPS.
Fairfield County, Case No. 14-CA-53 35
{¶81} The record makes clear that Mother failed to complete the majority of the
case plan provided by FCCPS and failed to meet even the basic needs of B.H. Mother
failed to maintain stable housing. Mother failed to maintain stable employment. Mother
failed to maintain her sobriety, made limited progress in her parenting skills, violated the
trial court’s no contact order on multiple occasions, and was not truthful with the
magistrate.
{¶82} The record does not demonstrate that if she had been offered different
case plan services, the result would have been different.
Mother’s sixth assignment of error: Ineffective Assistance of Counsel.
{¶83} In her sixth assignment of error, appellant-mother argues she was denied
effective assistance of counsel. Specifically, appellant mother argues 1). The trial court
lacked jurisdiction because the parents were living in Franklin County at the time of the
birth; 2). Counsel failed to challenge evidence that the child was born with fentanyl in his
system and its source; 3). Trial counsel should have requested a continuance of the
permanent custody hearing to allow her motion for permanent custody to the maternal
grandmother to have been heard.
{¶84} The standard for reviewing claims for ineffective assistance of counsel
was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a
claim for ineffective assistance of counsel.
Fairfield County, Case No. 14-CA-53 36
{¶85} First, we must determine whether counsel's assistance was ineffective;
i.e., whether counsel's performance fell below an objective standard of reasonable
representation and volatile of any of his essential duties to the client.
{¶86} Recently, the United States Supreme Court discussed the prejudice prong
of the Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at
687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284
(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and
so the Strickland standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity of the very adversary
process the right to counsel is meant to serve. Strickland, 466 U.S., at
689–690, 104 S.Ct. 2052. Even under de novo review, the standard for
judging counsel’s representation is a most deferential one. Unlike a later
Fairfield County, Case No. 14-CA-53 37
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to “second-guess
counsel’s assistance after conviction or adverse sentence.” Id., at 689,
104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional
norms,” not whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.
Harrington v. Richter, __U.S.__, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).
{¶87} We apply the Strickland test to all claims of ineffective assistance of
counsel, either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. Guernsey
No. 2005-CA-41, 2006-Ohio-5214.
Jurisdiction.
{¶88} In the case at bar, the magistrate found,
Mother and alleged father did not contest the finding of dependency
or placement of [B.H.] in the temporary custody of FCCPS. Neither party
objected to the jurisdiction of this Court at the time of the trial on the
dependency complaint. Further, Mother testified that she went to Fairfield
Medical Center when she went into labor for [B.H.] and then was
transferred to Ohio State University Hospital where she gave birth to
Fairfield County, Case No. 14-CA-53 38
[B.H.], Mother further testified that she gave a Fairfield County address as
her address to Ohio State University Hospital.
{¶89} There is no evidence that had jurisdiction been challenged the trial court
would have found it lacked jurisdiction. Appellant-mother has demonstrated no prejudice
resulting from any error.
Failure to object.
{¶90} Second, appellant mother challenges the introduction of evidence that
B.H. was born with drugs in his system.
{¶91} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136(1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E. 2d 831(1988).
Accord, State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233. A
defendant must also show that he was materially prejudiced by the failure to object.
Halloway, 38 Ohio St.3d at 244, 527 N.E.2d 831.
{¶92} Appellant-mother has failed to demonstrate that there exists a reasonable
probability that, had trial counsel objected to this evidence, the result of his case would
have been different. The result of the trial was not unreliable nor was the proceedings
fundamentally unfair because of the performance of defense counsel.
Failure to request a continuance.
{¶93} Ordinarily a reviewing court analyzes a denial of a continuance in terms of
whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84
S.Ct. 841, 11 L.Ed.2d 921(1964).
Fairfield County, Case No. 14-CA-53 39
{¶94} In the case at bar, the magistrate found the appellant-mother failed to file
and to serve the motion for relative placement/custody in accordance with the Rules of
Juvenile Procedure. Additionally, the magistrate did not refuse to hear the motion; rather
the court deferred hearing the motion until a determination of the permanent custody
motion.
{¶95} In the case at bar, no reason was given for waiting until the day of the
permanent custody hearing for requesting relative placement or custody. Appellant-
mother has failed to demonstrate that there exists a reasonable probability that, had trial
counsel requested a continuance the trial court would have granted the motion. The
result of the trial was not unreliable nor was the proceedings fundamentally unfair
because of the performance of defense counsel.
{¶96} Because we have found no instances of prejudice in this case, we find
appellant-mother has not demonstrated that she was prejudiced by trial counsel’s
performance.
Mother’s seventh assignment of error: Incorrect application of R.C.
2151.414(E)(4) and R.C. 2151.414(E)(10) to Mother.
{¶97} FCCPS concedes that a reading of the trial court's findings of fact would
indicate that R.C. 2151.414 (E) (4) and (10) were incorrectly applied to Mother.
{¶98} To find an error harmless, an appellate court must be able to declare a
belief that the error was harmless beyond a reasonable doubt. State v. Lytle, 48 Ohio
St.2d 391, 403, 358 N.E.2d 623 (1976). Civ.R. 61 sets forth the harmless error rule in
civil cases, providing that no error or defect in any ruling is “ground for granting a new
trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a
Fairfield County, Case No. 14-CA-53 40
judgment or order, unless refusal to take such action appears to the court inconsistent
with substantial justice.” See, State of Ohio, ex rel. Attorney General v. Vela, 5th Dist.
Licking No. 12–CA–62, 2013–Ohio–1049, ¶41.
{¶99} In the case at bar, the trial court also found that R.C. 2151.414 (E) (1), (2),
and (16) did correctly apply to Mother. We find Mother was not prejudiced. Therefore,
the error should be considered harmless error beyond a reasonable doubt.
Conclusion
{¶100} For these reasons, we find that the trial court’s determination that Mother
had failed to remedy the issues that caused the initial removal and therefore B.H. could
not be placed with her within a reasonable time or should not be placed with her was
based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court’s decision that permanent
custody to FCCPS was in B.H.’s best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
Fairfield County, Case No. 14-CA-53 41
{¶101} Because the evidence in the record supports the trial court’s judgment, we
overrule Mother’s seven assignments of error, and affirm the decision of the Fairfield
County Court of Common Pleas, Juvenile Court Division.
By Gwin, J.,
Hoffman, P.J.,
Farmer, J., concur
In re B.H.
Combined Opinion