[Cite as In re T.M., 2023-Ohio-4475.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
IN RE: CASE NO. 8-23-06
T.M.,
ADJUDGED ABUSED AND
DEPENDENT CHILD. OPINION
[THEODORE M. - APPELLANT]
Appeal from Logan County Common Pleas Court
Juvenile Division
Trial Court No. 21 CS 04
Judgment Affirmed
Date of Decision: December 11, 2023
APPEARANCES:
Alison Boggs for Appellant
Stacia L. Rapp for Appellee
Case No. 8-23-06
ZIMMERMAN, J.
{¶1} This is an appeal from the March 2, 2023 judgment entry of the Logan
County Court of Common Pleas, Juvenile Division, which terminated the parental
rights of the appellant, Theodore M. (“Theodore”), father of T.M., and granted
permanent custody of T.M. to Logan County Children’s Services (the
“agency”). For the reasons that follow, we affirm.
{¶2} Theodore and Ashley P. (“Ashley”) are the natural and biological
parents of T.M., born 2020. On January 21, 2021, the agency filed a complaint
alleging T.M. to be an abused child under R.C. 2151.031(D) and dependent child
pursuant to R.C. 2151.04(A) and (C). The agency sought an ex parte order of
emergency temporary custody of T.M., which the trial court granted. Then, the trial
court appointed T.M. a Guardian Ad Litem (“GAL”) and held a shelter-care hearing
wherein the trial court determined that probable cause existed to believe that T.M.
was an abused and dependent child; that it was in the children’s best interest to be
placed into the temporary custody of the agency; and that the agency had made
“[r]easonable efforts to eliminate the need for the removal of [T.M.] from the home
based upon the emergency nature of the circumstances.” (Doc. No. 34).
{¶3} Following the adjudicatory hearings held on February 10, 2021 and
March 1, 2021, the trial court found T.M. to be an abused and dependent child.1
1
The agency moved orally to strike the dependency allegation under R.C. 2151.04(A). (Doc. No. 43).
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{¶4} The trial court held a dispositional hearing on April 7, 2021, and
thereafter ordered that T.M. remain in the temporary custody of the agency. The
trial court found that the agency had made reasonable efforts to eliminate the need
for the continued removal of T.M. from the home, and that it was not in T.M’s best
interest to return home to his parents.
{¶5} On March 21, 2022, the agency filed a motion for permanent
custody. Ashley filed an answer to the agency’s motion and a motion for legal
custody on March 30, 2022. On October 7, 2022, Theodore filed his motion for
legal custody and requested an updated forensic-parenting evaluation, which the
agency opposed. The trial court granted Theodore’s motion (in part) continuing the
permanent-custody hearing and permitting him to schedule the updated evaluation.
{¶6} On October 12, 2022, the GAL filed a permanent-custody-GAL report
that was later supplemented on January 10, 2023.
{¶7} After the permanent-custody hearings conducted on January 17 and 18,
2023, the trial court granted permanent custody of T.M to the agency by a judgment
entry journalized on March 2, 2023.
{¶8} Theodore filed a timely notice of appeal and raises two assignments of
error for our review.
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First Assignment of Error
The Trial Court Erred In Accepting [Theodore’s] Stipulation
That The Agency Should Be Given Permanent Custody When
The Child’s Mother Was Not Making A Reciprocal Stipulation.
{¶9} In his first assignment of error, Theodore argues that the trial court erred
by accepting his agreement to consent to the granting of permanent custody (of
T.M.) to the agency. Specifically, Theodore argues that the trial court modified its
Juv.R. 29(D) colloquy (to him) thereby rendering his consent to permanent custody
of T.M. uninformed and invalid. Moreover, he argues that the trial court failed to
verbally advise him (in open court) of his right to appeal.
Standard of Review
{¶10} “The standard for appellate review in a permanent-custody case is
whether the trial court had clear and convincing evidence to make an award of
permanent custody.” In re Terrence, 6th Dist. No. L-05-1018, 2005-Ohio-3600, ¶
86, citing In re Hiatt, 86 Ohio App.3d 716, 725 (4th Dist. 1993). The “clear and
convincing evidence” standard is a higher degree of proof than the “preponderance
of the evidence” standard generally used in civil cases, but is less stringent than the
“beyond a reasonable doubt” standard used in criminal cases. State v. Schiebel, 55
Ohio St.3d 71, 74, (1990). On appeal from an order terminating parental rights, an
appellate court will not reverse the trial court’s judgment if, upon a review of the
record, it determines that the trial court had sufficient evidence to satisfy the clear-
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and-convincing-evidence standard. In re Wise, 96 Ohio App.3d 619, 626 (9th Dist.
1994).
{¶11} In reaching its determinations regarding permanent custody, the trial
court must safeguard certain fundamental rights of parents. Terrence, supra, at ¶
87. “It is well recognized that the right to raise a child is an ‘essential’ and ‘basic’
civil right.” In re Franklin, 3d Dist. Nos. 9-06-12 and 9-06-13, 2006-Ohio-4841, ¶
9, quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997) (citation omitted). The Supreme
Court of Ohio has held that a parent “must be afforded every procedural and
substantive protection the law allows.” In re Hayes, supra, quoting In re Smith, 77
Ohio App.3d 1, 16 (6th Dist. 1991). Where parental rights are permanently
terminated, “it is of utmost importance that the parties fully understand their rights
and that any waiver is made with full knowledge of those rights and the
consequences which will follow.” Elmer v. Lucas Cty. Children Serv. Bd., 36 Ohio
App.3d 241, 245 (6th Dist. 1987); Terrence, supra.
Analysis
{¶12} Here, the adjudicatory hearings of T.M. were held on February 10,
2021 and March 1, 2021 after which the trial court determined T.M. to be an abused
and dependent child pursuant to R.C. 2151.031(D) and R.C. 2151.04(C).
Conversely, the agency’s motion for permanent custody was filed under R.C.
2151.413 and R.C. 2151.414 seeking to modify the trial court’s temporary-custody
order to permanent custody. Permanent-custody proceedings are dispositional in
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nature and governed by Juv.R. 34 not Juv.R. 29. In re C.M., 10th Franklin No.
07AP-933, 2008-Ohio-2977, ¶ 35, citing In re Williams, 10th Dist. Franklin No.
03AP-1007, 2004-Ohio-678, ¶ 7. Since permanent-custody proceedings do not
concern adjudication, and instead are dispositional matters, Juv.R. 29 is not
applicable to the facts before us. In re C.M. at ¶ 36 (“Accordingly, because a hearing
to modify temporary custody to permanent custody is a dispositional hearing, Juv.R.
29 is inapposite.”). Consequently, Theodore’s argument regarding the trial court’s
professed failure to comply with Juv.R. 29 is wholly without merit under the facts
presented.
{¶13} Next, we address Theodore’s argument that the trial court judge failed
to verbally advise him of his right to appeal in open court. Importantly, Juv.R. 34(J)
requires “where any part of the proceeding was contested,” the trial court shall
advise the parties at the conclusion of the dispositional hearing of their right to
appeal. Notably, Ashley is the only parent who contested the proceeding. After the
commencement of the permanent-custody hearing, Theodore was sworn-in and
gave testimony regarding his willingness to consent to the permanent-custody
proceedings. Thereafter, he and his trial counsel left the courtroom and neither of
them participated in the remainder of the proceeding. Hence, if there was any error
here, it can be interpreted as invited error since the trial court was unable to advise
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Theodore of his right to appeal at the conclusion of the hearing due to his absence
from the hearing.2
{¶14} Additionally, as we noted in our recitation of the procedural history of
this case, Theodore filed a timely notice of appeal. Consequently, since Theodore’s
appeal was timely made he has suffered no prejudice from the trial courts alleged
failure, and this issue is moot. In the Matter of Holtgreven, 3d Dist. Hancock No.
5-95-7, 1995 WL 368841, *5 (June 23, 1995), citing In re Haas, 45 Ohio App.2d
187, 190 (5th Dist. 1975). In the Matter of E.R., 4th Dist. Athens No. 22CA16,
2023-Ohio-1468, ¶ 52.
{¶15} Accordingly, Theodore’s first assignment of error is overruled.
Second Assignment of Error
[Theodore] Received Ineffective Assistance Of Counsel.
{¶16} In his second assignment of error, Theodore argues that his trial
counsel was ineffective. Specifically, he asserts that his trial counsel was deficient
by advising him to consent to permanent custody and by not challenging the
Agency’s motion for permanent custody.
Standard of Review
{¶17} The statutory right to counsel is guaranteed in all stages of juvenile-
court proceedings under Chapter 2151 of the Revised Code. R.C. 2151.352. See
2
Nevertheless, we note that the trial court did include a written advisement of his right to appeal in the
judgment entry following the dispositional hearing.
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also Juv.R. 4(A). “Additionally, the right to counsel ‘“also arises from the
guarantees of due process and equal protection contained within the”’ Ohio
Constitution and Constitution of the United States.” In re A.D., 3d Dist. Seneca No.
13-22-12, 2023-Ohio-2442, ¶ 22, quoting In re J.C., 10th Dist. Franklin, 2023-Ohio-
778, ¶ 28 citing In re Brooks, 10th Dist. Franklin Nos. 04AP-164, 04AP-165, 04AP-
201, and 04AP-202, 2004-Ohio-3887, ¶ 24, citing State ex rel. Heller v. Miller, 61
Ohio St.2d 6 (1980), paragraph two of the syllabus. The right to counsel includes
the right to the effective assistance of counsel. In re I.R., 8th Dist. Cuyahoga, 2021-
Ohio-3103, ¶ 83; In re D.L.S., 3d Dist. Hancock Nos. 5-15-04 and 5-15-05, 2015-
Ohio-2809, ¶ 34, citing In re Moore, 3d Dist. Hardin, 153 Ohio App.3d 641, 2003-
Ohio-4250, ¶ 28 and In re Brooks at ¶ 24. “[W]e apply the same test as the test for
ineffective assistance of counsel in criminal cases announced in Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984), and adopted by the
Supreme Court of Ohio in State v. Smith, 17 Ohio St.3d 98, 100 (1985). In re D.L.S.
at ¶ 34, citing Moore at ¶ 29.
{¶18} Establishing ineffective assistance of counsel requires the party to
demonstrate: (1) a deficient performance by counsel–that counsel’s performance fell
below an objective standard of reasonable representation, and (2) that counsel’s
errors prejudiced the party–a reasonable probability that but for counsel’s errors, the
outcome would have been different. Strickland, 466 U.S. at 669, 694, 104 S.Ct. at
2068, 2054-2056; State v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and
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three of the syllabus; In re I.R. at ¶ 84. “[R]easonable probability” is “probability
sufficient to undermine confidence in the outcome.” Strickland at 694, 104 S.Ct. at
2068.
Analysis
{¶19} Here, Theodore argues that his attorney was deficient based upon: 1)
certain statements his attorney made to Theodore relative to his consent to the
agency’s permanent-custody motion; 2) that his counsel failed to argue factors
favorable to him including his completion of the case plan; 3) that counsel failed to
consider that Theodore’s below-average intelligence prevented him from
understanding the finality of his decision; and lastly, 4) that counsel’s discussion
with the trial court regarding preparation of the judgment entry outside of
Theodore’s presence is somehow indicative that he (Theodore) was not in favor of
consenting to the agency’s permanent-custody motion.
{¶20} Significantly, and because it is dispositive of all four portions of
Theodore’s argument, even if we assume without deciding that his trial counsel’s
performance fell below an objective standard of reasonable representation,
Theodore, nonetheless, cannot carry his burden with respect to the prejudice prong.
That is–he cannot establish that the trial court would have granted his legal-custody
motion had his trial counsel advised him to contest the agency’s motion.
Specifically, since the alleged perpetrator of T.M.’s physical abuse was never
identified by the parents (who had exclusive physical care and custody of T.M. at
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the time that he received his injuries3), and would be contrary to the forensic-
parenting evaluation that recommended that neither parent could provide a safe and
secure environment for T.M. See In re A.D., 2023-Ohio-2442, at ¶ 45.
Consequently, Theodore has failed to carry his burden as to the prejudice prong of
his ineffective-assistance-of-counsel claim.
{¶21} Accordingly, Theodore’s second assignment of error is overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and WILLAMOWSKI, J., concur.
/hls
3
Following a normal skeletal survey performed on T.M. at three days old, T.M. presented at his pediatrician’s
office just shy of his two-month well-check, with bruising on his left arm and Ashley (his mother) described
a seizure-like episode the preceding Sunday for which T.M. had not received any medical treatment. A
subsequent skeletal survey revealed signs of two healing fractures in T.M.’s right leg and one in his left ankle.
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