[Cite as In re Baby Boy N., 2021-Ohio-1272.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
No. 20AP-440
Baby Boy N., : (C.P.C. No. 18JU-11997)
(H.B., : (REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on April 13, 2021
On brief: Harris Law Firm, LLC, and Felice Harris, for
appellant.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
MENTEL, J.
{¶ 1} H.B., the alleged father of Baby Boy N., appeals from the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
granting the motion for permanent custody filed by Franklin County Children Services
("FCCS"). For the following reasons, we affirm the trial court's judgment.
I. Factual and Procedural Background
{¶ 2} On October 12, 2018, FCCS filed a complaint under R.C. 2151.353 alleging
that Baby Boy N. was an abused, neglected, and dependent child. The complaint alleged
that Baby Boy N., born two weeks prior, had "tested positive for oxycodone and
amphetamines at birth," had "suffered from withdrawals and required additional
treatment" afterwards, and that Mother C.N. "admitted to alcohol, marijuana,
methamphetamine and oxycodone use during her pregnancy." (Oct. 12, 2018 Compl. at 1.)
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C.N. claimed "that she had no knowledge of her pregnancy until approximately one month
prior to giving birth," that "she was in no position to provide for Baby Boy and that her plan
was to leave the hospital as soon as possible without" him. Id. Although C.N. initially
identified H.B. as the alleged father, she "later reported * * * that he could not be the Father
of Baby Boy, as she had only known [him]" for six months before the birth. Id.
{¶ 3} The magistrate granted emergency custody to FCCS on October 12, 2018.
After a preliminary hearing, the magistrate granted temporary custody to FCCS on
October 15, 2018.
{¶ 4} At a hearing held on November 16, 2018, C.N. and H.B. were present and
were served with the complaint. C.N. testified that she "believe[d]" that H.B. was the father
of Baby Boy N. (Nov. 16, 2018 Tr. at 5.) H.B. also testified. When asked if he thought that
he was Baby Boy N.'s father, he replied: "I believe so," but clarified that he had "had no
knowledge" of the pregnancy and first heard about the birth when he "got a ticket" and was
told he that he owed child support. (Tr. at 9.)
{¶ 5} After a hearing held on January 7, 2019, at which the matter was uncontested,
the magistrate adjudicated Baby Boy N. abused, neglected, and dependent. (Jan. 11, 2019
Mag.'s Decision.) In the FCCS case plan integrated into the adjudication order, one express
goal was determining and establishing the paternity of Baby Boy N. (Jan. 10, 2019 Case
Plan at 7.) The semi-annual review of May 28, 2019 identified H.B. as Baby Boy N.'s
"alleged father," but stated that "[p]aternity still needs established." (May 28, 2019 Semi-
annual Review at 4.) During a visit with the caseworker on March 14, 2019, H.B. stated that
he was "not interested in taking placement" of the child. Id.
{¶ 6} FCCS filed a motion for permanent custody of Baby Boy N. on August 22,
2019. Another semi-annal review of the FCCS case plan was filed on October 25, 2019. It
reported that H.B. attended the review but had "not established paternity and the
caseworker provided him again with the information that he needs to go complete testing."
(Oct. 25, 2019 Semi-annual Review at 4.)
{¶ 7} The magistrate issued findings of fact and conclusions of law on February 20,
2020 "regarding the reasonable efforts made by [FCCS] to implement a permanency plan"
in accordance with R.C. 2151.417. (Feb. 20, 2020 Findings of Fact & Conclusions of Law.)
The magistrate noted that FCCS had received temporary custody of Baby Boy N. on
No. 20AP-440 3
January 7, 2019, at which time "a case plan was approved." Id. The magistrate also stated
that Baby Boy N. had "been in the custody of [FCCS] for twelve out of twenty-two months"
and that the agency had moved for permanent custody. Id. The magistrate concluded that
FCCS had "made reasonable efforts to finalize a permanency plan." Id.
{¶ 8} The magistrate held a hearing on the motion for permanent custody on
February 20, 2020, with appearances by the attorney for FCCS, Baby Boy N.'s guardian ad
litem, an attorney representing H.B., and the FCCS caseworker assigned to Baby Boy N.'s
case. Mother C.N. was not present. H.B. was incarcerated and not present.
{¶ 9} H.B.'s attorney informed the magistrate that although his client was serving
a seven-year prison term, and against the advice of counsel, H.B. chose to contest the
motion. (Feb. 20, 2020 Tr. at 3-4.) The "biggest issue" H.B. had, according to his attorney,
was his belief that "he never received proper, specific instructions" on how to establish
paternity, as mandated by the case plan. (Tr. at 5-6.) H.B.'s attorney also informed the
magistrate that H.B.'s mother intended "to seek legal counsel and move to intervene as a
party to seek custody" and was present with the intention of addressing the court. (Tr. at
8.)
{¶ 10} FCCS called two witnesses to provide testimony in support of the motion for
permanent custody. Maggie Zych, an FCCS caseworker, testified that the agency had been
informed the day after Baby Boy N.'s birth that he had tested positive for oxycodone and
amphetamines and that his mother was "unwilling" to take him home with her from the
hospital or "to set up an adoption plan for him." (Tr. at 20.) Upon his discharge, FCCS
placed the baby in a foster home where he has lived continuously, and the parents were
"strongly interested in adopting him." Id. C.N. never complied with any requirement of
the case plan and "consistently" said that "she didn't want to participate" whenever she
spoke with Ms. Zych. (Tr. at 23.) Neither C.N. nor H.B. had ever "had any visitation or
contact" with Baby Boy N. (Tr. at 24.)
{¶ 11} Ms. Zych testified initially C.N. refused to "provide any information
whatsoever" about the baby's father. (Tr. at 24.) C.N. eventually relented and provided
H.B.'s contact information in December 2018. Id. Ms. Zych met with H.B. four times
between March and September 2019 "regarding paternity" and stated she "spoke to him
about it at each contact." (Tr. at 25.) After consulting with an FCCS attorney, she emailed
No. 20AP-440 4
C.N. with the "specific steps [that] needed to be taken," including signing a paternity
affidavit at the health department or the Child Support Enforcement Agency. Id. However,
"[n]either were willing to do that. They wanted to [have] an actual test." Id. Ms. Zych told
them "to open a case" with the Child Support Enforcement Agency ("CSEA") and she
"provided that information in person on May 29th to both parents," but there was "no
progress." (Tr. at 26.) Ms. Zych was not able to get into contact with H.B. again until
September 30, 2019 at which time he expressed that "he didn't understand" the
information, so she "gave [him] the same exact information again." Id. Her supervisor
provided H.B. with the information again on October 4, 2019. Id. In spite of these efforts,
paternity was never established. (Tr. at 27.)
{¶ 12} Ms. Zych also testified that no maternal relatives were willing to take
placement of Baby Boy N., H.B. expressed that "he couldn't take the child but would like to
establish paternity," and that his mother was not willing to allow a home study "until
paternity was established." (Tr. at 28.) According to her observations, Baby Boy N. was
"very bonded" with his foster parents, who are "the only parents he knows." (Tr. at 29.)
There had been no contact between C.N. or H.B. and the child, as H.B. "didn't want contact
until paternity was established." Id.
{¶ 13} The guardian ad litem, Don Kline, testified that Baby Boy N. was "in a very
loving home with foster parents that are able to adopt," had "known no one but them," and
was "very well bonded" to the foster parents. (Tr. at 56.) Mr. Kline also stated at a previous
hearing, he spoke with H.B. and told "him that he needed to go right across the street * * *
that day, to go to 80 East Fulton Street and get his DNA [test] done and be done with it."
Id. Mr. Kline reiterated this request to H.B. at another hearing date as well. (Tr. at 57-58.)
He recommended granting the motion for permanent custody "due to the fact that mother
and father have done absolutely zero as far [as] any case plan objectives and they have never
even seen this child." (Tr. at 60.)
{¶ 14} After FCCS rested its case, H.B.'s mother stood up and attempted to address
the court to "express [her] concern" about Baby Boy N. She accused C.N. of lying and telling
her that "the baby died," and stated she wanted "paternity established" so the child could
"be with" her. (Tr. at 62-63.) H.B.'s attorney objected to the magistrate not allowing her to
be called as a witness. (Tr. at 66.)
No. 20AP-440 5
{¶ 15} Effective February 20, 2020, the magistrate granted the motion for
permanent custody, ruling that it was "in the best interest of Baby Boy [N.] to terminate the
parental rights of" C.N. and H.B. (Mar. 3, 2020 Mag.'s Decision at 3.)
{¶ 16} H.B. objected to the magistrate's decision on two grounds. First, he objected
to the magistrate's denial of his counsel's request "to call his mother (paternal
grandmother) as a witness" at the hearing. (Mar. 19, 2020 Objs. at 2.) Second, he objected
that "[t]he Magistrate's ruling was against the manifest weight of the evidence. As example,
the evidence failed to demonstrate that [FCCS] had made reasonable efforts in assisting
Father to complete his task plan goals, specifically in the goal of having father establish
paternity." Id.
{¶ 17} The trial court overruled H.B.'s objections and adopted the magistrate's
decision in its entirety. (Sept. 3. 2020 Decision & Jgmt. Entry.) The trial court overruled
H.B.'s objection to the magistrate not allowing his attorney to call his mother as a witness,
finding that "the magistrate acted within his authority to deny [the] witness to regulate the
proceeding" after her outburst. (Decision & Jgmt. Entry at 5.) The trial court stated that
she appeared to be "arguing for the custody of the minor child for herself," yet had taken no
steps to be added as a party to the case. Id.
{¶ 18} The trial court rejected H.B.'s second objection on two grounds. First, it
noted that H.B.'s invocation of the "manifest weight of the evidence" standard was
"improper" when reviewing a magistrate's decision. (Decision & Jgmt. Entry at 5-6.) Thus,
the trial court "conduct[ed] and independent analysis" of the record and found no error in
the magistrate's decision to terminate the parties' parental rights. (Decision & Jgmt. Entry
at 6.) Second, after recounting the caseworker's efforts to assist H.B. with establishing
paternity, it rejected the contention that FCCS did not fail to make reasonable efforts at
reunification. (Decision & Jgmt. Entry at 7.)
{¶ 19} H.B. has appealed and asserts the following assignments of error:
[I.] The trial court's decision granting permanent custody to
Franklin County Children Services is against the manifest
weight of the evidence.
[II.] The trial court abused its discretion in denying trial
counsel's request to call Ms. Johnson as a witness.
No. 20AP-440 6
[III.] H.B.'s right to the effective assistance of counsel was
violated when counsel's performance fell below an objectively
reasonable standard and his deficient performance resulted in
prejudice.
II. Standard of Review
{¶ 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 K.L., 10th
Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-
1167, 2004-Ohio-3312. Under the manifest weight of the evidence standard, the court of
appeals "will not overturn a permanent custody order when it is supported by competent,
credible evidence." (Citations omitted.) In re C.W., 10th Dist. No. 19AP-309, 2020-Ohio-
1248, ¶ 51. The reviewing court "must make every reasonable presumption in favor of the
judgment and the trial court's findings of facts." In re K.M., 10th Dist. No. 15AP-64, 2015-
Ohio-4682, ¶ 13. In addition, we "generally review a trial court's adoption, denial or
modification of a magistrate's decision for an abuse of discretion." Brunetto v. Curtis, 10th
Dist. No. 10AP-799, 2011-Ohio-1610, ¶ 10.
III. Analysis
{¶ 21} H.B. presents four arguments in support of the first assignment of error
challenging the trial court's decision to grant the motion for permanent custody. First, he
argues that the trial court erroneously overlooked findings of fact issued by the magistrate
when it stated: "The record is devoid of a request for finding of fact and conclusions of law
from the magistrate Juv.R. 40(D)(3)(a)(ii)." (Appellant's Brief at 17.) Citing the
February 20, 2020 Findings of Fact and Conclusions of Law, H.B. argues that the trial
court's statement was "against the manifest weight of the evidence." (Appellant's brief at
18.)
{¶ 22} Our review of the record confirms that the trial court's observation was
correct. No party requested findings of fact and conclusions of law under
Juv.R. 40(D)(3)(a)(ii), which states that "a magistrate's decision may be general unless
findings of fact and conclusions of law are timely requested by a party or otherwise required
by law." The February 20, 2020 findings of fact cited by H.B. specifically reference the
magistrate's responsibility to review the permanency plan under R.C. 2151.417: "Pursuant
to section 2151.417 of the Revised Code, the Court hereby makes the following Findings of
No. 20AP-440 7
Fact regarding the reasonable efforts made by [FCCS] to implement a permanency plan."
See R.C. 2151.417(A) (stating that "[a]ny court that issues a dispositional order" finding a
child abused, neglected or dependent "may review at any time * * * the child's permanency
plan if the child's permanency plan has been approved, and any other aspects of the child's
placement or custody arrangement"). The magistrate's findings may have been "otherwise
required by law," as allowed by Juv.R. 40(D)(3)(a)(ii), but they were not responsive to a
request by any party. In addition, no party requested findings of fact or conclusions of law
after the entry of the magistrate's March 3, 2020 decision terminating C.N.'s and H.B.'s
parental rights. The record confirms the trial court's observation on this issue.
{¶ 23} H.B.'s second argument is that the magistrate's finding in the February 20,
2020 Findings of Fact and Conclusions of Law that "Baby Boy [N.] has been in the custody
of Children Services for twelve out of twenty-two months" was against the manifest weight
of the evidence because Baby Boy N. had only been in FCCS's temporary custody for ten
months at the time the agency filed the motion for permanent custody. (Feb. 20, 2020
Findings of Fact and Conclusions of Law; Appellant's Brief at 19-20.)
{¶ 24} H.B. did not object to this finding in the trial court and cannot challenge it 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)." Juv.R.
40(D)(3)(b)(iv). H.B. does not claim plain error with regard to this finding. In fact, he
concedes that "FCCS did not move for permanent custody on the grounds that B.B.N. was
in the temporary custody of the agency for at least 12 months of a consecutive 22-month
period." (Appellant's brief at 20.)
{¶ 25} Our review of the motion for permanent custody confirms that FCCS did not
invoke or base its case on the 12-out-of-22 provision in R.C. 2151.414, the statute that
governs the determination of an agency's motion for permanent custody of a child. "Before
granting permanent custody [under R.C. 2151.414], a trial court must make two
determinations by clear and convincing evidence." In re C.W., 2020-Ohio-1248, at ¶ 54.
First, the trial court must determine whether one of the five factors under R.C.
2151.414(B)(1) applies. Second, the trial court must determine "by clear and convincing
No. 20AP-440 8
evidence, that it is in the best interest of the child to grant permanent custody of the child
to the agency that filed the motion for permanent custody." Id. With regard to the first
determination, FCCS specifically filed the motion under the first two of the five factors
under R.C. 2151.414(B)(1). (Aug. 22, 2019 Mot. for Permanent Custody at 2.) Thus, FCCS
intended to prove either that (1) "[t]he 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 of the child's parents within a reasonable time or
should not be placed with the child's parents" under R.C. 2151.414(B)(1)(a), or (2) "[t]he
child is abandoned" under R.C. 2151.414(B)(1)(b). (Emphasis added.) FCCS did not invoke
R.C. 2151.414(B)(1)(d), under which it would have had to prove that "[t]he child ha[d] been
in the temporary custody of one or more public children services agencies* * * for twelve or
more months of a consecutive twenty-two-month period." Thus, even if H.B. had properly
objected to the magistrate's finding and not waived his challenge to it, the finding had no
effect on the case FCCS had to prove.
{¶ 26} H.B. also argues that neither the magistrate's decision nor the trial court's
judgment entry considered the "best interest" factors under R.C. 2151.414(D), the second
determination required by R.C. 2151.414(B)(1). H.B. did not raise this specific objection to
the magistrate's decision, as required by Juv.R. 40(D)(3)(b)(iv). Thus, the issue is waived
with regard to that filing. Moreover, "unless a party requests findings of fact and
conclusions of law, a trial court need not set forth specific factual findings regarding each
R.C. 2151.414(D) best interest factor." In re C.B.C., 4th Dist. No. 15CA18, 2016-Ohio-916,
¶ 41. See also In re Day, 10th Dist. No. 00AP-1191 (Feb. 15, 2001) ("R.C. 2151.414(D) does
not require that the trial court set forth the specific factual findings that correlate to the
factors set forth in the statute unless a party requests findings of fact and conclusions of
law."). H.B. did not request findings of fact or conclusions of law after entry of the
magistrate's decision, so he cannot fault the trial court for not providing a detailed analysis
of the best interest factors in its final judgment.
{¶ 27} Furthermore, our review of the trial court's judgment shows that, although it
did not specifically cite to the applicable statutory factors, its analysis applied them when
conducting its de novo review before adopting the magistrate's decision. Based on its
No. 20AP-440 9
"review of the record," the trial court found that Baby Boy N. "has no bond with any
biological family members, but only knows the foster family," which had provided "a very
loving home" for him. (Sept. 3, 2020 Decision & Jgmt. Entry at 6.) This observation was
consonant with the first "best interest factor" under R.C. 2151.414(D)(1)(a), which is "[t]he
interaction and interrelationship of the child with the child's parents, siblings, relatives,
foster caregivers and out-of-home providers, and any other person who may significantly
affect the child."
{¶ 28} The second best interest factor is "[t]he 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." R.C. 2151.414(D)(1)(b). The trial court noted "[t]he GAL has
consistently recommended that this Court grant PCC." (Sept. 3, 2020 Decision & Jgmt.
Entry at 6.) " 'The juvenile court properly considers the GAL's recommendation on the
permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the
children are too young to express their wishes.' " In re D.N., 10th Dist. No. 19AP-755, 2020-
Ohio-5092, ¶ 22, quoting In re B/K Children, 1st Dist. No. C-190681, 2020-Ohio-1095,
¶ 45. Due to Baby Boy N.'s tender age, reliance on the guardian ad litem's recommendation
was entirely appropriate.
{¶ 29} The trial court's analysis also touched on "the custodial history of the child"
under R.C. 2151.414(D)(1)(c). It noted that "the minor child was removed from his Mother's
custody after he tested positive for illegal substances after birth and his mother refused to
take him" and that currently he "is placed in a very loving home with foster parents who are
able to adopt him." (Sept. 3, 2020 Decision & Jgmt. Entry at 6.) This custodial history
supported the trial court's decision to adopt the magistrate's conclusion that granting
permanent custody was in Baby Boy N.'s best interest. See In re T.P., 8th Dist. No. 102705,
2015-Ohio-3679, ¶ 41 (R.C. 2151.414(D)(1)(c) factor applies where "[t]he child has been in
the agency's custody since he was a few days old and was never returned to the custody of
mother during the entire pendency of the case.").
{¶ 30} Other observations addressed "[t]he child's need for a legally secure
permanent placement and whether that type of placement can be achieved without a grant
of permanent custody to the agency." R.C. 2151.414(D)(1)(d). Noting that both "parents
failed to remedy the problems leading to removal," their absence at "the final PCC trial,"
No. 20AP-440 10
and the impossibility of placing Baby Boy N. with H.B. "because of his lengthy
incarceration," the trial court concluded that he could not "be placed with either parent
within a reasonable time and should not be placed with either parent." (Sept. 3, 2020
Decision & Jgmt. Entry at 6.) Clear and convincing evidence supported the magistrate's
conclusion that it was "in the best interest of Baby Boy N." to grant the motion for
permanent custody, and the trial court did not err by adopting this conclusion.
{¶ 31} H.B.'s final argument in support of the first assignment of error is that "the
trial court's finding that [FCCS] made reasonable efforts to assist H.B. in his effort to
establish paternity [was] against the manifest weight of the evidence." (Appellant's Brief at
22.) He criticizes the caseworker's attempts to advise him on how to establish paternity
and faults her for "not explicitly advis[ing]" him that he could go to CSEA without C.N. to
open a case or take a DNA test. (Appellant's Brief at 24.) He asserts that because he "was
thwarted in his compliance with FCCS's instructions to establish paternity and FCCS did
not make reasonable efforts to assist him," the agency failed in its burden to prove that it
made reasonable efforts at family reunification under R.C. 2151.419. Id. at 26.
{¶ 32} Under R.C. 2151.419, "the court shall determine whether the public children
services agency * * * has made reasonable efforts to prevent the removal of the child from
the child's home, to eliminate the continued removal of the child from the child's home, or
to make it possible for the child to return safely home. The agency shall have the burden of
proving that it has made those reasonable efforts." The Supreme Court of Ohio has held
that "except for some narrowly defined statutory exceptions, the state must still make
reasonable efforts to reunify the family during the child-custody proceedings prior to the
termination of parental rights. If the agency has not established that reasonable efforts have
been made prior to the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time." In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 43.
{¶ 33} In this case, every iteration of the case plan documented the need to establish
paternity and FCCS's ongoing efforts to engage with H.B. to achieve this goal. In addition,
immediately after granting temporary custody to FCCS, the magistrate specifically ordered
C.N. and H.B "to cooperate with [CSEA] in establishing paternity" of Baby Boy N. (Oct. 15,
2018 Mag.'s Order.) Ms. Zych testified at the hearing she spoke with H.B. on four different
occasions about establishing paternity, her supervisor spoke with him, and each time he
No. 20AP-440 11
was given the necessary information. Clear and convincing evidence supported the trial
court's conclusion that FCCS made repeated attempts to assist H.B. in order to comply with
the case plan objective, the magistrate's order, and its responsibility under R.C. 2151.419 to
make "reasonable efforts" at reunification. H.B. was not "thwarted" from establishing
paternity, as he protests. Rather, the agency was thwarted by H.B.'s inaction. The first
assignment of error is overruled.
{¶ 34} H.B.'s second assignment of error asserts the trial court abused its discretion
when it denied his attorney's request to call his mother as a witness. He argues that his
attorney had not actually rested his case before making the request and that she "could have
provided sworn testimony about her relationship with Mother and H.B.; problems
establishing paternity; reasons for delaying her home study; and her interactions with the
caseworker and GAL." (Appellant's Brief at 29.)
{¶ 35} The record is unclear as to whether H.B.'s attorney had formally rested before
his mother's outburst. After the magistrate asked if he had any witnesses, H.B.'s attorney
replied: "Your Honor, I have no -- I don't think I have any witnesses, but I would note Your
Honor, that I believe that [H.B.'s mother] is seeking to gain the Court's attention." (Tr. at
61.) The trial court read this exchange to mean H.B.'s "counsel had already rested his case
when he tried to call an additional witness * * * to the stand." (Sept. 3, 2020 Decision &
Jgmt. Entry at 5.) Whatever the status of his case, it is apparent H.B.'s attorney had no
preexisting intention of calling H.B.'s mother as a witness before she stood up and began
speaking out in court.
{¶ 36} At any rate, under Juv.R. 40(C)(2), "magistrates are authorized, subject to
the terms of the relevant reference, to regulate all proceedings as if by the court and to do
everything necessary for the efficient performance of those responsibilities, including * * *
[p]utting witnesses under oath and examining them." A trial court's decision overruling an
objection to a magistrate's decision to not allow a witness is reviewed for an abuse of
discretion. Perez v. Perez (In re Perez), 10th Dist. No. 04AP-126, 2004-Ohio-5068, ¶ 20.
{¶ 37} The hypothetical subject matter of his mother's testimony that H.B. describes
was, at best, of marginal relevance to the issue before the magistrate. Testimony concerning
her relationships with C.N., who abandoned the child, and H.B., who never established
paternity, were irrelevant to the best interest factors under R.C. 2151.414(D)(1). Those
No. 20AP-440 12
factors all concern the child, such as "[t]he interaction and interrelationship of the child
and the child's parents," the "wishes of the child," "the custodial history of the child," and
"the child's need for a legally secure placement." (Emphasis added.) R.C. 2151.414(D)(1).
{¶ 38} Similarly, H.B.'s mother's reasons for delaying a home study or her
interactions with the caseworker and GAL might have been relevant to the determination
of a motion for custody, but she did not seek custody during the months between the
October 15, 2018 grant of temporary custody to FCCS and the dispositional order of
temporary court custody to the agency on January 11, 2019. See R.C. 2151.353(A)(3) ("if a
child is adjudicated an abused, neglected, or dependent child, the court may * * * award
legal custody of the child to either parent or to any other person who, prior to the
dispositional hearing, files a motion requesting legal custody of the child"); see also In re
J.P., 10th Dist. No. 15AP-193, 2015-Ohio-4687, ¶ 3 (grandmother moved for legal custody
four months after dependency complaint filed).
{¶ 39} Finally, we believe the magistrate heard adequate testimony from Ms. Zych
and the guardian ad litem concerning H.B.'s "problems establishing paternity."
(Appellant's Brief at 29.) We are not convinced his mother's testimony would have been
based on personal knowledge, given the relevant interactions were between H.B. and FCCS
representatives. We find no error in the trial court's decision to overrule the objection to
the magistrate's ruling excluding H.B.'s mother as a witness. The second assignment of
error is overruled.
{¶ 40} In the third assignment of error, H.B. argues his "trial counsel was ineffective
for failing to object to insufficiencies in the trial court's judgment awarding permanent
custody to FCCS." (Appellant's Brief at 31.)
{¶ 41} Under R.C. 2151.352, a parent "is entitled to representation by legal counsel
at all stages of the proceeding" terminating their parental rights. In addition to the
statutory right, the right to counsel "also arises from the guarantees of due process and
equal protection contained within the constitutions of Ohio and the United States." In re
Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 24, citing State ex rel. Heller v.
Miller, 61 Ohio St.2d 6 (1980), paragraph two of the syllabus ("In actions instituted by the
state to force the permanent, involuntary termination of parental rights, the United States
and Ohio Constitutions' guarantees of due process and equal protection of the law require
No. 20AP-440 13
that indigent parents be provided with counsel."). "Parents who are parties in proceedings
involving the termination of parental rights are entitled to the effective assistance of
counsel." In re C.P., 10th Dist. No. 08AP-1128, 2009-Ohio-2760, ¶ 56, citing In re Brooks,
at ¶ 24.
{¶ 42} "The test for ineffective assistance of counsel used in criminal cases is equally
applicable to actions seeking to force the permanent, involuntary termination of parental
custody." In re Brooks at ¶ 24, citing In re McLemore, 10th Dist. No. 00AP-974 (Mar. 20,
2001). There are "two components" to the test set forth in Strickland v. Washington, 466
U.S. 668, 687 (1984), that a party claiming ineffective assistance of counsel must prove.
Under the first component, the party "must show that counsel's performance was
deficient," by "showing that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The
second component requires a showing of prejudice. Id. "This requires showing that
counsel's errors were so serious as to deprive the defendant of a fair" proceeding with a
reliable result. Id. However, a court is not required "to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one. In particular, a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies." Id. at 697.
{¶ 43} H.B. claims that his counsel was deficient for failing to argue that FCCS did
not prove the "twelve of twenty-two months" factor under R.C. 2151.414(B)(1)(d) or to
challenge the trial court for failing to consider the best interest factors under R.C.
2151.414(D)(1). (Appellant's Brief at 32-33.) As previously discussed, FCCS did not move
for permanent custody based on R.C. 2151.414(B)(1)(d), so his counsel was not deficient for
failing to raise this argument. As we also discussed, the trial court was not required to track
the statute precisely in its analysis.
{¶ 44} H.B. also asserts his "trial counsel was ineffective for failing to challenge the
court's failure to find termination of parental rights was in the best interest of the child."
(Appellant's Brief at 32.) But he states no grounds on which his counsel could have
challenged the trial court's finding. Prejudice under Strickland is defined as "a reasonable
probability that, but for counsel's alleged errors, the outcome of the proceeding would have
No. 20AP-440 14
been different." State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 142. The record
in this case is devoid of any evidence that could have even minimally countered what FCCS
presented to prove that granting the agency permanent custody was in Baby Boy N.'s best
interests. H.B. was not prejudiced by his counsel's failure to present a futile argument. The
third assignment of error is overruled.
{¶ 45} Having overruled the three assignments of error, we affirm the judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile
Branch.
Judgment affirmed.
BROWN and BEATTY BLUNT, JJ., concur.
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