In re A.R.

2013 Ohio 236

• Court: Ohio Court of Appeals
• Decided: January 14, 2013
• Docket: 2012CA00168
• Status: Published

Opinion

[Cite as In re A.R., 2013-Ohio-236.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: IN THE MATTER OF: : Patricia A. Delaney, P.J. : William B. Hoffman, J. A.R. : Sheila G. Farmer, J. : : Case No. 2012 CA 00168 : : : OPINION

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas, Juvenile Division, Case No. 2011 JCV 00025

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 14, 2013

APPEARANCES:

For Appellee-Stark County Dept. of For Appellant-B.R. Job and Family Services

JAMES B. PHILLIPS DEAN L. GRASE Stark County Department of 703 Courtyard Center Job and Family Services 116 Cleveland Avenue N.W. 221 Third Street, S.E. Canton, Ohio 44702 Canton, Ohio 44702 [Cite as In re A.R., 2013-Ohio-236.]

Delaney, P.J.

{¶1} Appellant, B.R., appeals a judgment of the Stark County Common Pleas

Court, Family Court Division, awarding permanent custody of his daughter A.R. to

appellee Stark County Department of Job and Family Services (“SCDJFS”).

FACTS AND PROCEDURAL HISTORY

{¶2} A.R. was born on January 3, 2011. On January 6, 2011, an emergency

shelter care hearing was held and temporary custody was granted to SCDJFS. The

concerns which gave rise to the filing of the complaint, alleging that A.R. was dependent

and neglected, included issues of domestic violence between appellant and the child’s

mother and extensive past history between SCDJFS and A.R.’s mother. Appellant was

determined to be the father of A.R. on February 1, 2011.

{¶3} Appellant and the child’s mother stipulated that A.R. was a dependent

child. The court adopted and approved a case plan and temporary custody of A.R.

continued with SCDJFS.

{¶4} On May 21, 2012, appellant filed a motion to change legal custody of A.R.

to his parents. He also filed a motion to extend temporary custody. In his motion, he

suggested that SCDJFS use the extension of custody to implement services to reduce

concerns regarding his parents and to allow his parents to continue to visit with A.R.

{¶5} SCDJFS filed a motion for permanent custody on May 22, 2012, which

proceeded to an evidentiary hearing on August 14, 2012. Appellant was incarcerated

during the majority of the case and failed to complete his case plan. At the permanent

custody hearing he was homeless and admitted that he could not care for A.R. Stark County App. Case No. 2012 CA 00168 3

Appellant stipulated to the grounds for permanent custody and the case proceeded to

the best interest portion of the hearing.

{¶6} During the best interest hearing, SCDJFS presented evidence that the

child had bonded well with her foster family and they desired to adopt her. The

caseworker testified that visits with appellant’s parents did not go well. While the

grandmother behaved appropriately much of the time during the visits, she occasionally

made comments concerning the foster parents’ treatment of the child, as she believed

A.R. was cranky and spoiled. The caseworker testified that A.R. was afraid of

appellant’s father, and on one occasion he left a visit because he was frustrated that

A.R. cried and was fearful of him. She further testified that an evaluation of the paternal

grandparents was completed with Northeast Ohio Behavioral Health and the evaluation

did not recommend placing A.R. with appellant’s parents. The guardian ad litem

recommended that permanent custody be given to the agency because the child had

bonded with the foster parents.

{¶7} Appellant testified that he had knowingly violated a no contact order with

A.R.’s mother, and that his parents assisted him in covering up this violation. He

testified that his mother believes the permanent custody case and his criminal history

are not his fault and she blames others for his problems. He admitted that his mother

does not know the entire story and if she did, her opinion might change. However, he

wanted the child to be placed with his parents because he felt she should be with blood

relatives. Stark County App. Case No. 2012 CA 00168 4

{¶8} At the end of the hearing, appellant withdrew his motion to have legal

custody changed to his parents. The court awarded permanent custody of A.R. to

SCDJFS. Appellant assigns three errors on appeal:

{¶9} “I. THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES AS ITS

FINDING THAT THE BEST INTERESTS OF THE CHILD WERE SERVED BY SUCH

FINDING WAS CONTRARY TO THE MANIFEST WEIGHT AND SUFFICIENCY OF

THE EVIDENCE.

{¶10} “II. APPELLANT SHOULD BE ENTITLED TO A NEW TRIAL BECAUSE

HE WAS INEFFECTIVELY REPRESENTED AT TRIAL AS HIS COUNSEL’S

PERFORMANCE FELL BELOW OBJECTIVE STANDARDS OF ADEQUATE

REPRESENTATION AND SUCH INEFFECTIVE PERFORMANCE MATERIALLY

AFFECTED THE APPELLANT’S ABILITY TO ACHIEVE A RELATIONSHIP WITH HIS

CHILD.

{¶11} “III. THE TRIAL COURT ERRED IN FAILING TO FOLLOW THE

DICTATES OF R.C. 2151.412 (F)(2)(b) BY FAILING TO SCHEDULE A HEARING ON

PROPOSED CHANGES TO THE CASE PLAN REQUESTED BY APPELLANT’S

ATTORNEY.”

I

{¶12} Appellant argues the trial court’s finding that permanent custody was in

A.R.’s best interest is against the manifest weight and sufficiency of the evidence.

{¶13} It is well-established that “[t]he discretion which the juvenile court enjoys in

determining whether an order of permanent custody in the best interest of a child should Stark County App. Case No. 2012 CA 00168 5

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. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000) quoting In re

Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (1994).

{¶14} In determining the best interest of a child for purposes of a permanent

custody disposition, the trial court is required to consider the factors contained in R.C.

2151.414(D). These factors are as follows:

{¶15} “(1) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster care givers and out-of-home providers, and any other

person who may significantly affect the child;

{¶16} “(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;

{¶17} “(3) The custodial history of the child, including whether the child has been

in the temporary custody of one or more public children services agencies or private

child placing agencies for twelve or more months of a consecutive twenty-two month

period * * *;

{¶18} “(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

to the agency;

{¶19} “(5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.”

{¶20} The trial court’s finding that granting permanent custody of A.R. to

SCDJFS was in her best interest was not against the manifest weight or sufficiency of Stark County App. Case No. 2012 CA 00168 6

the evidence. The caseworker testified that A.R. is a Caucasian child with no

developmental delays or medical issues. A.R. had been in the same foster home for 17

months and has developed a strong bond with the foster parents. When separated from

the foster parents to visit with the paternal grandparents, she would cry to the point

where she choked or gagged herself. Appellant had only visited with the child a few

times and he had no bond with the child. The foster parents wanted to adopt A.R.

{¶21} The caseworker further testified that visits with A.R. and the paternal

grandparents had not gone well. A.R. was afraid of appellant’s father, and at one visit

the grandfather stormed out of the visit because A.R. would not stop crying. Appellant’s

mother made derogatory comments about the child being cranky and spoiled because

of the foster parents. While the grandparents passed the safety audit portion of a home

study, SCDJFS had concerns about placing the child with them because they had

placed an older grandchild with the grandparents, and the grandparents had later asked

that the child be removed from their home. The caseworker expressed concerns that

the grandparents would not protect A.R. from the risk appellant posed to the child due to

his history of domestic violence because they never held him responsible for his

criminal actions. The grandparents had covered up and supported appellant’s violation

of a no contact order between appellant and A.R.’s mother. The paternal grandparents

were evaluated by Northeast Ohio Behavioral Health and the recommendation was that

the child not be placed with the grandparents. Further, the guardian ad litem stated that

she considered permanent custody to be in A.R.’s best interest.

{¶22} The first assignment of error is overruled. Stark County App. Case No. 2012 CA 00168 7

II

{¶23} In his second assignment of error, appellant argues that his trial counsel

was ineffective.

{¶24} Although this is not a criminal case, the Supreme Court of Ohio has

characterized the termination of parental rights as the “death penalty” of parenting.

Because of this characterization, this district has adopted the “criminal” standard to

ineffective assistance of counsel arguments in permanent custody actions. In re Fell,

Guernsey App. No. 05 CA 8, 2005–Ohio–5790; In re Utt Children, Stark App. No.

2003CA00196, 2003–Ohio–4576. A properly licensed attorney is presumed competent.

State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to

prevail on a claim of ineffective assistance of counsel, appellant must show counsel's

performance fell below an objective standard of reasonable representation and but for

counsel’s error, the result of the proceedings would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, appellant must show that

counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied upon as having produced a just result. Id.

APPELLANT’S TESTIMONY

{¶25} Appellant first argues that counsel was ineffective by calling him to testify

at the hearing. He argues that his testimony was damaging to his request that the child

be placed with his parents.

{¶26} Appellant admitted on the stand that his parents assisted him in violating

the no contact order, and that they did not hold him responsible for his criminal Stark County App. Case No. 2012 CA 00168 8

activities. However, his testimony was merely duplicative of the testimony of the

caseworker, who had already testified that appellant violated the no contact order and

his parents covered for him and that appellant’s parents did not recognize the risk

appellant posed to A.R. or hold him accountable for his actions. Further, there was

abundant evidence, as outlined in the first assignment of error that permanent custody

of A.R. was in her best interest. Appellant has not demonstrated that had he not

testified, the result of the hearing would have been different.

GRANDPARENTS’ TESTIMONY

{¶27} Appellant also argues that counsel was ineffective for failing to call his

parents to the stand to rebut his damaging testimony.

{¶28} Appellant and the caseworker had already testified that the grandparents

covered up appellant’s violation of the no contact order and that they did not believe

appellant posed a risk to the child nor did they hold him responsible for his criminal

actions. We do not know from the record that calling the grandparents to the stand

would have rebutted this testimony, as they may have testified consistently with the

prior testimony. Appellant cannot demonstrate that the outcome of the hearing would

have been different had his parents testified.

{¶29} The second assignment of error is overruled.

III

{¶30} In his third assignment of error, appellant argues that the court failed to

follow R.C. 2151.412(F)(2)(b) by not scheduling a hearing on his proposed changes to

the case plan. Stark County App. Case No. 2012 CA 00168 9

{¶31} R.C. 2151.412(F)(2)(b) provides:

{¶32} “(F)(2) Any party may propose a change to a substantive part of the case

plan, including, but not limited to, the child's placement and the visitation rights of any

party. A party proposing a change to the case plan shall file the proposed change with

the court and give notice of the proposed change in writing before the end of the day

after the day of filing it to all parties and the child's guardian ad litem. All parties and the

guardian ad litem shall have seven days from the date the notice is sent to object to and

request a hearing on the proposed change.

{¶33} “(b) If it does not receive a timely request for a hearing, the court may

approve the proposed change without a hearing. If the court approves the proposed

change without a hearing, it shall journalize the case plan with the change not later than

fourteen days after the change is filed with the court. If the court does not approve the

proposed change to the case plan, it shall schedule a hearing to be held pursuant to

section 2151.417 of the Revised Code no later than thirty days after the expiration of the

fourteen-day time period and give notice of the date, time, and location of the hearing to

all parties and the guardian ad litem of the child. If, despite the requirements of division

(F)(2) of this section, the court neither approves and journalizes the proposed change

nor conducts a hearing, the agency may implement the proposed change not earlier

than fifteen days after it is submitted to the court.”

{¶34} Appellant did not file a proposed change to the case plan. In his motion to

extend temporary custody, he asked SCDJFS to use this proposed extension of time to

implement services to reduce the agency’s concerns regarding the paternal

grandparents and to allow further visitation with the grandparents. However, a Stark County App. Case No. 2012 CA 00168 10

proposed change to the case plan was not filed and appellant did not make a request

for a specific amendment to the case plan.

{¶35} Further, appellant’s parents were not parties to the action. R.C. 2151.412

requires case plans to be prepared in cases involving a public children services agency.

However, the statute references the term party throughout and does not require an

agency to provide case plan services to a non-party.

{¶36} The trial court did not err in failing to comply with R.C. 2151.412(F)(2)(b).

{¶37} The third assignment of error is overruled.

{¶38} The judgment of the Stark County Common Pleas Court, Juvenile

Division, is affirmed.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur

______________________________

JUDGES

PAD/r1219 [Cite as In re A.R., 2013-Ohio-236.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : : A.R. : : : : JUDGMENT ENTRY : : : : CASE NO. 2012 CA 00168

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas, Juvenile Division, is affirmed.

Costs assessed to Appellant.

_________________________________