In re T.C.

[Cite as In re T.C., 2016-Ohio-7631.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

In re T.C., T.H. Court of Appeals No. L-16-1154

Trial Court No. JC 14243697

DECISION AND JUDGMENT

Decided: November 4, 2016

*****

Stephen D. Long, for appellant.

Bradley W. King, for appellee.

*****

PIETRYKOWSKI, J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, Juvenile Division, which awarded permanent custody of the minor children T.C.
and T.H. to appellee, Lucas County Children Services (“LCCS”), thereby terminating

mother-appellant’s, T.H., parental rights.1 For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} On October 21, 2014, LCCS filed a complaint in dependency and neglect,

and a motion for a shelter care hearing, in which it alleged that T.C. complained to school

personnel that he was exhausted from walking all weekend while carrying his belongings

because the family had been kicked out of where they were living. The complaint also

alleged that appellant and the children were moving from place to place; that appellant

has a history of substance use; that appellant has left the children with family and friends

for long stretches of time; that LCCS has been involved with appellant since 1989; and

that appellant has eight older children and she has lost custody of several of those

children. On the same day, a shelter care hearing was held at which the children were

placed in the temporary custody of LCCS.

{¶ 3} At the adjudication and disposition hearing held on December 2, 2014,

mother agreed to the allegations in the complaint as written, and consented to a finding

that the children were dependent. Temporary custody of the children was awarded to

LCCS.

{¶ 4} An amended case plan was provided with the goal of reunification. As part

of the case plan, appellant was to complete a diagnostic assessment for emotional/mental

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The parental rights of father, T.H., were also terminated by the trial court. Father did
not appear at the hearing, and has not appealed the trial court’s decision, thus we will not
discuss the court’s findings relative to him.

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health counseling to address concerns that her emotional/mental health affected her

ability to parent and placed the children at risk. Appellant also was to complete a drug

and alcohol assessment and submit to random drug screens to address concerns that she

was abusing prescription medications. Third, to address concerns that appellant had no

stable housing and was essentially homeless, appellant was to obtain safe and stable

housing for herself and the children, pay her rent on time, and maintain her housing in a

safe and sanitary manner. Fourth, appellant was to attend and actively participate in

domestic violence counseling to address concerns of domestic violence dating as far back

as 2009. Finally, appellant was to engage in counseling to address the instability she has

experienced.

{¶ 5} On August 31, 2015, LCCS moved for an extension of temporary custody,

which, after a hearing, the trial court granted on October 13, 2015. On January 21, 2016,

LCCS filed its motion for permanent custody. The matter proceeded to a trial on the

motion on May 23, 2016.

{¶ 6} At the trial, LCCS called Linda Rosenbloom, the ongoing caseworker, as its

only witness.

{¶ 7} Rosenbloom testified to concerns regarding appellant’s mental health and

substance abuse. She testified that appellant was a recovering alcoholic, and that

although appellant stated that she has been clean and sober for years, there were reports

from various people that appellant was abusing pain medications, i.e., percocets, and

there were also concerns that appellant was exhibiting drug seeking behavior.

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Rosenbloom testified that she has observed some irregularities in appellant’s behavior in

that appellant has reported having to use a walker, but Rosenbloom has observed her run

out of the courtroom “quite quickly and looked fully capable of doing it.” Relative to the

pain management, Rosenbloom recalls seeing a prescription for something in the past, but

does not remember what medication was prescribed. Additionally, Rosenbloom testified

that appellant admits to using marijuana. Notably, appellant has missed several drug

screens.

{¶ 8} Rosenbloom also testified regarding domestic violence concerns. She stated

that appellant had been a victim of domestic violence dating back to 2009, and also to her

childhood. Appellant was referred to Project Genesis for domestic violence services, and

completed the course. However, instead of taking the typical three months to complete

the course, it took appellant six to nine months to complete. Rosenbloom posited that the

delay was due, in part, to appellant’s work schedule. Appellant was also referred for

trauma therapy, but did not complete it. The reason she did not complete the therapy was

because the therapy center asked appellant to sign some paperwork, and when they

insisted that she sign it after she stated that she could not due to her disability, appellant

fell to the ground in pain, necessitating a call for an ambulance. Appellant then

threatened to sue the therapy center.

{¶ 9} Turning to appellant’s work history and financial situation, Rosenbloom

testified that appellant had no current income whatsoever, and that her older son is paying

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her rent of $25 a month. She stated on cross-examination that appellant has lived in her

current residence for the past nine months. However, Rosenbloom testified that appellant

has said that she has no money for food, and struggles to get food for herself.

Furthermore, Rosenbloom testified on cross-examination that the older son would not

stipulate that he would help pay a certain amount every month to help appellant, and the

other family members have expressed that they are tired and do not want to help raise

appellant’s children anymore.

{¶ 10} Rosenbloom also stated that during her involvement, appellant has had two

jobs, but neither lasted long. Rosenbloom conveyed that appellant has stated her lack of

employment is due to a disability stemming from a work injury she suffered in 2006.

Beginning in July 2015, after her last job ended, appellant claimed that she had hired an

attorney out of Cleveland to pursue some type of workers’ compensation or disability

benefits. Notably, she claimed that she hired a Cleveland attorney because no Toledo

attorney would take her case. Rosenbloom testified that appellant has been referencing a

“huge settlement”—three or four million dollars—that is going to be reached soon, but

when Rosenbloom spoke with appellant’s attorneys she found no correlation between

what appellant was saying and what the attorneys said. Rosenbloom further testified on

cross-examination that appellant was denied workers’ compensation or disability

payments in 2016.

{¶ 11} Rosenbloom also testified to a staffing meeting that occurred six months

before the trial where they were going to discuss a permanency plan for the children.

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Several members of appellant’s family were at the meeting, during which appellant

became agitated and stormed out of the meeting.

{¶ 12} Finally, regarding the children, Rosenbloom testified that they are currently

in foster care where they are enrolled in lots of extracurricular activities and are doing

well. Rosenbloom also stated that appellant has made most of her visits with the

children. If permanent custody were awarded to the agency, Rosenbloom testified that

the plan was that a maternal aunt would adopt the children. The maternal aunt has

specified that she has no interest in only getting legal custody. Rosenbloom testified that

her opinion is that permanent custody is in the best interest of the children because

although the children love their mother, appellant cannot offer any stability or

consistency and the children are exhausted.

{¶ 13} Appellant testified next on her own behalf. Appellant testified that in April

2016, she won an appeal in the Industrial Commission, and that her workers’

compensation case is going back “to reactivate me on serious -- on degenerative [disk

disease in my lumbar].” She stated that she is in chronic pain, but that doctors in Toledo

have lied to her and told her nothing was wrong for the past ten years. She further stated

that she has not received a prescription for pain medication since November 2015 when

the doctor refused to treat her because she had on too much perfume.

{¶ 14} Appellant also testified that she has completed every part of her case plan,

except for maintaining a stable income, even though her caseworker offered her no

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assistance, not even bus tokens or food. Appellant asked the court to give her another

month to receive her ten years of back-pay stemming from her disability claim.

{¶ 15} Finally, the guardian ad litem, Fanny Effler, testified. Effler testified that

she believes the only way the children will have stability in their lives is through an

award of permanent custody to the agency. She noted that the other family members

would not accept legal custody because they did not want to deal with appellant. Effler

also testified that she does not believe it is true that appellant is going to be the recipient

of a monetary settlement. She explained that appellant had sought work throughout the

case until all of a sudden in July 2015 appellant started talking about a settlement from an

injury that occurred in 2006. Effler stated that everyone has been waiting for that

settlement for the past 11 months, but it never came, and she does not think the children

can wait any longer.

{¶ 16} Following the presentation of testimony, the trial court took the matter

under advisement, and on May 25, 2016, orally conveyed its ruling awarding permanent

custody of the children to LCCS. The trial court’s findings subsequently were

memorialized in a journal entry on June 13, 2016.

II. Assignments of Error

{¶ 17} Appellant has timely appealed the trial court’s judgment, and now asserts

three assignments of error on appeal:

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 1. The trial court’s decision to terminate parental rights and

responsibilities was not supported by clear and convincing evidence and

was against the manifest weight of the evidence.

2. The trial court’s decision to terminate the parental rights of

mother violates the equal protection clauses of the United States and Ohio

constitutions and substantive due process considerations where the award

of permanent custody was based upon mother’s poverty rather than her

actions or inactions.

3. Mother was denied the effective assistance of counsel.

III. Analysis

{¶ 18} Appellant’s first two assignments of error are interrelated, thus we will

address them together.

{¶ 19} In order to terminate parental rights and award permanent custody of a

child to a public services agency under R.C. 2151.414, the juvenile court must find, by

clear and convincing evidence, two things: (1) that one of the enumerated factors in R.C.

2151.414(B)(1)(a)-(d) apply, and (2) that permanent custody is in the best interests of the

child. R.C. 2151.414(B)(1). Clear and convincing evidence is that which is sufficient to

produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to

be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph

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three of the syllabus. The clear and convincing standard requires more than a

preponderance of the evidence, but it does not require proof beyond a reasonable doubt.

Id.

{¶ 20} “A trial court’s determination in a permanent custody case will not be

reversed on appeal unless it is against the manifest weight of the evidence.” In re A.H.,

6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th

Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. We recognize that,

as the trier of fact, the trial court is in the best position to weigh the evidence and evaluate

the testimony. Id., citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d

Dist.1994). Thus, “[j]udgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 21} R.C. 2151.414(B)(1)(a) provides that a trial court may grant permanent

custody of a child to the agency if it finds that, in addition to the placement being in the

best interest of the child,

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, * * * and the child cannot be placed with either

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 of the child’s parents within a reasonable time or should not be placed with

the child’s parents.

R.C. 2151.414(E) requires a trial court to find that a child cannot be placed with either of

the child’s parents within a reasonable time or should not be placed with either parent if

any of sixteen factors are met. Here, the trial court found that R.C. 2151.414(E)(1) and

(4) applied. Those sections provide:

(1) Following the placement of the child outside the child’s home

and notwithstanding reasonable case planning and diligent efforts by the

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

child to be placed outside the home, the parent has failed continuously and

repeatedly to substantially remedy the conditions causing the child to be

placed outside the child’s home. In determining whether the parents have

substantially remedied those conditions, the court shall consider parental

utilization of medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made available to

the parents for the purpose of changing parental conduct to allow them to

resume and maintain parental duties.

***

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

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

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

an adequate permanent home for the child.

{¶ 22} In reaching its findings, the trial court reasoned that despite being involved

in some case plan services, appellant has not demonstrated an ability to provide any

stability for the children, noting that appellant has no current income, has not maintained

employment or shown that she has a legitimate claim for worker’s compensation, has

trouble providing basic necessities even for herself, and has repeatedly shown that she is

incapable of caring for the children’s needs.

{¶ 23} In her brief, appellant argues that the trial court essentially terminated her

parental rights because she was poor. Appellant notes that the children were initially

removed because she was homeless. However, at the time of the hearing, appellant had

resided at the same location for the previous nine months, thereby resolving the

homelessness issue. Furthermore, appellant argues that there is no “lack of commitment”

as evidenced by her visits to the children and the fact that the children want to be with

her. Thus, appellant concludes the sole basis for terminating parental rights was that she

had no income.

{¶ 24} Appellant cites In re K., 8th Dist. Cuyahoga No. 83410, 2004-Ohio-4629, ¶

40, in which the Eighth District stated, “Poverty in and of itself is not a crime. Nor is it a

basis for permanently removing children from their parents.” Appellant contends that she

worked until a degenerative injury from 2006 prevented her from finding gainful

employment. She then sought to obtain a steady source of income either through

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workers’ compensation or social security. Appellant asserts that the evidence at trial

shows that while she is actively seeking governmental assistance, she has not yet been

approved. Therefore, appellant concludes that the trial court’s decision to terminate

parental rights was against the manifest weight of the evidence and violated equal

protection.

{¶ 25} Upon our review of the record, we disagree. Notably, in In re K., the

Eighth District continued, “When an impoverished parent’s actions, however, result in

parental neglect, our society would be remiss if it did not intervene for the sake of the

child’s welfare. Appellant had more than two years to remedy the situation in which she

found herself. Her children should not be penalized because she did not do so.” Id.

{¶ 26} Here, appellant’s ninth and tenth children, the previous eight of whom

appellant no longer had custody of,2 were removed from appellant’s care because they

were homeless. Early in LCCS’ intervention, appellant had a series of jobs, but was not

able to maintain consistent employment. Suddenly, in July 2015, nine months after the

children were removed, appellant began referencing a settlement from an injury nearly 10

years ago. Notably, the trial court found appellant’s testimony to be un-credible, stating,

“Based on [appellant’s] demeanor, testimony, and answers to questions, the Court has

concerns that [appellant] does not have the capacity to understand the circumstances of

her pain, maintenance, and condition and whether she in fact has an appropriate worker’s

compensation claim.” Additionally, Rosenbloom testified that information from

2
One of appellant’s children is deceased.

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appellant’s attorneys in Cleveland was inconsistent with appellant’s view of whether she

was entitled to a settlement.

{¶ 27} Thus, the evidence demonstrates that in the 21 months since the children

were removed, appellant has not changed her circumstances; appellant has no income,

has difficulty providing food for herself, is relying on her older son to pay her rent—

which he will not commit to continuing to do—has not maintained employment, and has

not demonstrated any realistic possibility of receiving a financial settlement from her

previous injury. Furthermore, there is nothing in the record to suggest that appellant’s

situation will improve in the near future. Therefore, we hold that the trial court’s findings

under R.C. 2151.414(E)(1) and (4) are not against the manifest weight of the evidence

and are not in violation of the equal protection clauses of the United States and Ohio

constitutions.

{¶ 28} Accordingly, appellant’s first and second assignments of error are not well-

taken.

{¶ 29} In her third assignment of error, appellant argues that she received

ineffective assistance of counsel based on counsel’s failure to understand and examine

appellant’s workers’ compensation or social security claims.

{¶ 30} The test for ineffective assistance of counsel in a parental rights termination

proceeding is the same as that used in criminal cases. Jones v. Lucas County Children

Servs. Bd., 46 Ohio App.3d 85, 86, 546 N.E.2d 471 (6th Dist.1988). To prevail on a

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claim of ineffective assistance, appellant must satisfy the two-prong test developed in

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

That is, appellant must demonstrate that counsel’s performance fell below an objective

standard of reasonableness, and a reasonable probability exists that, but for counsel’s

error, the result of the proceedings would have been different. Id. at 687-688, 694. “The

object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.” Id. at 697.

{¶ 31} Here, appellant has failed to demonstrate any reasonable probability that,

but for counsel’s failings, the result of the proceedings would have been different.

Appellant argues that counsel failed to examine the viability of appellant’s workers’

compensation or social security claims. However, the record contains no evidence that

those claims were, in fact, viable. Instead, the trial court found appellant’s testimony to

be un-credible, Rosenbloom testified that the information from appellant’s Cleveland

attorneys was inconsistent with appellant’s belief, and although appellant implied that a

settlement was imminent beginning in July 2015, as of May 2016 nothing had

materialized. Therefore, we hold that appellant has failed to demonstrate that she

received the ineffective assistance of counsel.

{¶ 32} Accordingly, appellant’s third assignment of error is not well-taken.

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 IV. Conclusion

{¶ 33} For the foregoing reasons, we find that substantial justice has been done the

party complaining and the judgment of the Lucas County Court of Common Pleas,

Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE

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