In re B.H.

2014 Ohio 5790

• Court: Ohio Court of Appeals
• Decided: December 29, 2014
• Docket: 14-CA-53
• Status: Published

Opinion

[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

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