[Cite as In re B.H., 2026-Ohio-1213.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: B.H. : : C.A. No. 30654 : : Trial Court Case No. G-2021-004169- : 0Q : : (Appeal from Common Pleas Court- : Juvenile Division) : : FINAL JUDGMENT ENTRY & OPINION ...........
Pursuant to the opinion of this court rendered on April 3, 2026, the judgment of the
trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
ROBERT G. HANSEMAN, JUDGE
TUCKER, J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30654
MELISSA A. BERRY, Attorney for Appellant MICHAEL P. ALLEN, Attorney for Appellee
HANSEMAN, J.
{¶ 1} Appellant (“Mother”) appeals from a judgment of the Juvenile Division of the
Montgomery County Common Pleas Court that granted permanent custody of her child,
B.H., to the Montgomery County Department of Job and Family Services, Children Services
Division (“MCCS”). Mother challenges the sufficiency and manifest weight of the evidence
underlying the judgment. Mother also claims her counsel provided ineffective assistance,
thus violating her Sixth Amendment right under the United States and Ohio Constitutions.
For the reasons that follow, the judgment of the trial court is affirmed.
I. Facts and Course of Proceedings
{¶ 2} At the time of B.H.’s birth on May 11, 2021, the child had symptoms of drug
withdrawal that required additional hospitalization before discharge to Mother.
Approximately two months later, on August 13, 2021, Mother called emergency services
reporting mental health issues and a fear of drug abuse relapse. Mother was hospitalized,
and B.H. was taken to her maternal grandmother, who also had addiction problems. MCCS
became involved with B.H. and filed a dependency complaint on September 22, 2021. Once
MCCS was granted interim temporary custody of B.H., the child was placed with her great-
grandmother. On November 29, 2021, B.H. was adjudicated dependent, and MCCS placed
B.H. in foster care due to great-grandmother’s age and medical issues.
{¶ 3} MCCS created a case plan for Mother, which required her to complete
substance abuse and mental health treatment, comply with random drug testing, sign
2 releases of information, maintain safe, adequate housing, complete parenting classes and
a parenting psychological evaluation, follow up with all recommendations related to the
psychological evaluation, attend weekly supervised visitations with B.H., and attend all
scheduled medical appointments for B.H.
{¶ 4} For a period of time, Mother maintained sobriety, continued with mental health
services, obtained employment, attended supervised visits with B.H., and otherwise
performed well on her case plan. A year after B.H. was adjudicated dependent, on
November 17, 2022, MCCS filed a motion to have Mother reunified with B.H. with MCCS to
maintain protective supervision. After receiving interim temporary custody of B.H. in January
2023, Mother relapsed on illegal substances, and MCCS was granted temporary custody of
B.H.
{¶ 5} One month later, on April 3, 2023, Mother received interim temporary custody
of B.H. again. However, MCCS received reports that Mother was leaving B.H. alone in her
apartment. On April 8, 2023, Mother was found naked and locked out of her apartment, and
she refused to cooperate with law enforcement. B.H. was located inside of Mother’s
apartment alone on the floor. Mother was admitted to a hospital, where she acknowledged
using methamphetamine. MCCS filed another motion for temporary custody on April 13,
2023, and the trial court granted the motion on May 9, 2023. At that time, B.H. was
approximately two years old. The child was placed with a new foster family, J.S. and C.S.
{¶ 6} Mother’s case plan with MCCS remained the same. She was required to
continue with mental health and substance abuse treatment, maintain sobriety, complete a
parenting class, maintain suitable housing and income, and have weekly supervised visits
with B.H. MCCS’s primary goal was to reunite B.H. with Mother. As a secondary concurrent
3 goal if Mother failed to meet her case plan objectives, MCCS identified adoption as a
possibility.
{¶ 7} In September 2023, Mother had a meeting with her MCCS caseworker, during
which she was under the influence of illegal substances. Mother threatened the caseworker
with physical harm. Also in September, Mother had an altercation with staff members at a
methadone clinic and was arrested for disorderly conduct. Mother admitted to abusing
heroine and methamphetamine. As a result, MCCS suspended Mother’s supervised visits
with B.H. until she could demonstrate her commitment to sobriety and provide three clean
drug tests.
{¶ 8} On December 28, 2023, MCCS filed its motion for permanent custody of B.H.
The trial court initially scheduled the hearing for March 20, 2024; however, the hearing was
continued to October 1, 2024. During the time leading up to the final hearing, MCCS
continued to work with Mother. But Mother did not maintain sobriety and became homeless
around April 2024.
{¶ 9} At the October 1, 2024 permanent custody hearing, Mother did not appear, but
her attorney was present. MCCS called two witnesses: Mother’s MCCS caseworker and J.S.
The caseworker testified about his involvement with Mother since B.H. was adjudicated
dependent in November 2021. The caseworker described Mother as inconsistent with her
case plan. The caseworker told the court that when Mother was compliant with her case
plan, she was not abusing illegal drugs. When Mother was noncompliant with her case plan,
she admitted to the caseworker that she had relapsed.
{¶ 10} The caseworker also testified about Mother’s drug abuse treatment history.
Mother had engaged with seven different agencies. At every treatment provider, Mother
began treatment and did well for a short time, but she was eventually terminated from
4 treatment. Each termination was an incomplete termination due to either Mother’s voluntarily
termination to seek alternative treatment or Mother’s continuing drug use and missed
appointments.
{¶ 11} Regarding Mother’s visits with B.H., the caseworker testified that Mother had
supervised visitations suspended in September 2023. The caseworker explained he
required three clean drug screens from Mother to reinstate visitation. In July 2024, Mother
attended two visits with B.H. The caseworker described Mother’s attitude during the visits
as aggressive and confrontational. The caseworker also believed that Mother attended the
visits under the influence. Due to Mother’s impairment, the caseworker again suspended
visits in August 2024.
{¶ 12} The caseworker also described seeking alternative placement for B.H.
Placement with Mother’s relatives was not an option, though. Mother’s grandparents could
not provide long-term care for B.H. due to age- and health-related issues. Mother’s uncle
was interviewed but refused to be a placement option. B.H.’s father was unknown.
{¶ 13} As to B.H.’s placement with J.S. and C.S., the caseworker testified that J.S.
and C.S. were a foster-to-adopt placement. The caseworker described J.S and C.S. as very
loving and testified that B.H. was bonded with them.
{¶ 14} At the time of the October 1, 2024 hearing, the caseworker was not able to
confirm Mother’s current treatment due to her failure to sign releases of information. Mother
had also refused to allow the caseworker into her rooming house near a homeless shelter.
As a result, the caseworker could not testify as to whether Mother’s current housing was
suitable for B.H. The caseworker also believed Mother was unemployed and receiving
monthly disability income.
5 {¶ 15} J.S. also testified at the October 1, 2024 permanent custody hearing. J.S.
confirmed that B.H. was doing well in her care and that she and her husband wanted to
adopt B.H. J.S. testified that B.H. called her “mommy” and her husband “daddy.” J.S. stated
that B.H. was generally a very happy child and had been developing normally. J.S. testified
that B.H. was very bonded with her and her husband and that B.H. was also bonded with
her extended family as well, including her sister, brother-in-law, and three nieces.
{¶ 16} Regarding contact with Mother, J.S. stated that she and her husband had set
up an email account so that Mother could contact them regarding B.H. Mother never asked
them anything regarding B.H., except on one occasion where her husband responded by
sending Mother photographs of B.H. J.S. also described B.H.’s behavior after the two visits
with Mother in July 2024. J.S. indicated that after B.H. had contact with Mother, B.H. got
emotional, cried, and pushed J.S. away. B.H. needed to be held and consoled. J.S.
described B.H.’s behavior as very emotional, and it lasted for a few consecutive days.
{¶ 17} When the evidence of MCCS’s case was completed, counsel for Mother did
not present evidence or witnesses. Mother’s counsel told the court that he had spoken with
Mother regarding her case in the past. Counsel also indicated that the last communication
he had with Mother was around July 2024, during which Mother asked about the next
scheduled court date. Counsel stated that he emailed Mother the court date, called her, and
left a voicemail. Counsel told the court that he had no communication from Mother since his
correspondence and voicemail.
{¶ 18} The recommendation of the guardian ad litem (“GAL”) at the hearing was for
MCCS to be granted permanent custody of B.H. The magistrate filed a written decision
granting permanent custody to MCCS on November 20, 2024. Two days later, on November
22, 2024, Mother filed her initial objections to the magistrate’s decision. After a transcript of
6 the hearing was prepared, her objections were supplemented by new counsel on March 17,
2025. Mother’s former counsel withdrew to preserve all appealable issues for Mother.
{¶ 19} On September 22, 2025, the trial court filed its written decision overruling each
of Mother’s objections to the magistrate’s decision. After conducting a de novo review, the
trial court determined that B.H. had been in MCCS’s care over twelve months of a twenty-
two-month period of time and that permanent custody to MCCS was in B.H.’s best interests.
The trial court concluded that MCCS had made reasonable efforts to reunite B.H. with
Mother. It found that due to Mother’s sporadic and inconsistent progress with her case plan,
it was impossible to safely return B.H. to Mother’s care in a reasonable time. This appeal
followed on October 10, 2025.
II. Mother’s Assignments of Error
Mother raises two assignments of error.
First Assignment of Error
THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S
DECISION GRANTING PERMANENT CUSTODY TO THE AGENCY, WHICH
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
Second Assignment of Error
TRIAL COUNSEL WAS INEFFECTIVE, CAUSING A VIOLATION OF
MOTHER’S SIXTH AMENDMENT RIGHT TO COUNSEL.
III. Sufficiency and Manifest Weight of the Evidence
{¶ 20} Mother’s first assignment of error claims that the trial court’s decision granting
permanent custody of B.H. to MCCS was not supported by sufficient evidence and was
against the manifest weight of the evidence. MCCS contends the trial court’s decision should
7 be reviewed for abuse of discretion. Appellee’s Brief, p. 4. Because the proper standard of
review must be applied, we address this issue first.
Standard of Review
{¶ 21} On December 27, 2023, the Supreme Court of Ohio resolved a conflict among
the district courts of appeals regarding the proper standard of review when an appellate
court reviews a trial court’s decision awarding permanent custody. In re Z.C., 2023-Ohio-
4703, ¶ 18. The Court held that “the proper appellate standards of review to apply in cases
involving a juvenile court’s decision under R.C. 2151.414 to award permanent custody of a
child and to terminate parental rights are the sufficiency-of-the-evidence and/or manifest-
weight-of-the-evidence standards.” Id. Since Z.C., appellate review of a judgment
terminating parental rights pursuant to R.C. 2151.414 has not been reviewed under the
abuse of discretion standard. Id.
Sufficiency of the Evidence
{¶ 22} The sufficiency of the evidence and manifest weight of the evidence standards
are “distinct concepts and are ‘“both quantitatively and qualitatively different.”’” Id. at ¶ 13,
quoting Eastley v. Volkman, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio
St.3d 380, 386 (1997), paragraph two of the syllabus. The sufficiency of the evidence
standard is a “‘test of adequacy,’” whereas “weight of the evidence ‘“is not a question of
mathematics, but depends on its effect in inducing belief.”’” (Emphasis in original.) Id.,
quoting Thompkins at 386-387, quoting Black’s Law Dictionary (6th Ed. 1990). “‘Whether
the evidence is legally sufficient to sustain a verdict is a question of law.’” Id., quoting
Thompkins at 386. “When applying a sufficiency-of-the-evidence standard, a court of
appeals should affirm a trial court when the evidence is legally sufficient to support the jury
verdict [or trial court’s decision] as a matter of law.” (Cleaned up.) Id.
8 Manifest Weight of the Evidence
{¶ 23} “But ‘even if a trial court judgment is sustained by sufficient evidence, an
appellate court may nevertheless conclude that the judgment is against the manifest weight
of the evidence.’” Z.C. at ¶ 14, quoting Eastley at ¶ 12. “When reviewing for manifest weight,
the appellate court must weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether, in resolving conflicts in the evidence,
the finder of fact clearly lost its way and created such a manifest miscarriage of justice that
the judgment must be reversed and a new trial ordered.” Id. “‘In weighing the evidence, the
court of appeals must always be mindful of the presumption in favor of the finder of fact.’”
Id., quoting Eastley at ¶ 21. “Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court as
being against the manifest weight of the evidence.” C. E. Morris Co. v. Foley Const. Co.,
54 Ohio St.2d 279 (1978), syllabus.
Permanent Custody Under R.C. 2151.414
{¶ 24} We acknowledge that a parent has a “fundamental liberty interest” in the care,
custody, and management of his or her child and an “essential” and “basic civil right” to raise
his or her children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re Murray, 52 Ohio
St.3d 155, 157 (1990); accord In re D.A., 2007–Ohio–1105, ¶ 8-9. However, a parent’s
fundamental rights are not absolute. D.A. at ¶ 11. Rather, “‘it is plain that the natural rights
of a parent . . . are always subject to the ultimate welfare of the child, which is the polestar
or controlling principle to be observed.’” In re Cunningham, 59 Ohio St.2d 100, 106 (1979),
quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App. 1974). Thus, the state may terminate
parental rights when a child’s best interest demands such termination. D.A. at ¶ 11.
9 {¶ 25} R.C. 2151.414 governs the termination of parental rights in Ohio. “[I]f a 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, the agency with custody shall file a motion requesting permanent custody of the
child.” R.C. 2151.413(D)(1). After a hearing, trial courts must apply a two-part test as outlined
in R.C. 2151.414(B)(1) to determine whether to grant a motion for permanent custody to a
public children services agency. The statute requires the trial court to find, by clear and
convincing evidence, that (1) any one of the factors enumerated in R.C. 2151.414(B)(1)(a)
through (e) exist and that (2) an award of permanent custody to the agency is in the best
interest of the child. R.C. 2151.414(B)(1).
{¶ 26} “Clear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Factors of R.C. 2151.414(B)(1)(a) Through (e)
{¶ 27} With regard to the factors under (a) through (e) of R.C. 2151.414(B)(1), the
court must find by clear and convincing evidence that the child either (a) cannot or should
not be placed with either parent within a reasonable period of time; (b) is abandoned; (c) is
orphaned and no relatives are able to take permanent custody of the child; (d) has been in
the temporary custody of one or more public or private children services agencies for 12 or
more months of a consecutive 22-month period; or (e) the child or another child in the
custody of the parent or parents from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three separate occasions by any
10 court in this state or another state. R.C. 2151.414(B)(1)(a) through (e). “If any of the
aforementioned factors are satisfied, then the court must determine whether granting
permanent custody is in the best interest of the child.” In re A.W., 2025-Ohio-5657, ¶ 51
(2d Dist.), citing In re J.N., 2020-Ohio-4157, ¶ 26 (2d Dist.), and R.C. 2151.414(B)(1).
{¶ 28} Of relevance in this case, the trial court found clear and convincing evidence
that B.H. had been in the temporary custody of MCCS for 12 or more months of a
consecutive 22-month period pursuant to R.C. 2151.414(B)(1)(d).
Twelve or More Months of a Consecutive 22-Month Period
{¶ 29} “[A] child shall be considered to have entered the temporary custody of an
agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the
Revised Code or the date that is sixty days after the removal of the child from home.”
R.C. 2151.414(B)(1)(e).
{¶ 30} In the trial court’s decision, the trial court determined that the date B.H. was
adjudicated dependent (November 29, 2021) was the date that B.H. entered the temporary
custody of MCCS. The trial counted the total months up to the date when MCCS filed its
motion for permanent custody (December 28, 2023). The trial court then found that B.H. had
been in the temporary custody of MCCS for 20 months. Upon review, the trial court correctly
calculated the total time B.H. had been in the temporary custody of MCCS. In re C.W., 2004-
Ohio-6411, ¶ 26 (“[B]efore a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22–month period. In other words, the time that passes between the filing of a
motion for permanent custody and the permanent-custody hearing does not count toward
the 12–month period set forth in R.C. 2151.414(B)(1)(d).”).
11 {¶ 31} Additionally, the brief time B.H. was reunified with Mother does not change the
calculation. According to the Supreme Court of Ohio, “R.C. 2151.414(B)(1)(d) simply
requires 12 or more months of temporary custody within a consecutive 22-month period.
Nothing in R.C. 2151.414(B)(1)(d) requires 22 months of agency involvement before the
agency seeks permanent custody.” In re N.M.P., 2020-Ohio-1458, ¶ 22.
{¶ 32} “To meet the statutory requirement that a child be in the custody of a children-
services agency for 12 or more months of a consecutive 22-month period, the child might
have been placed in the agency’s custody for one continuous period or the child might have
been placed in the agency’s custody, removed from the agency’s custody, and then returned
to the agency’s custody.” Id. at ¶ 23. In N.M.P., the child had been reunified with the parent
for approximately two months, but the child had been in the temporary custody of the agency
for over 18 months. Similarly in this case, though Mother had brief reunification with B.H.
between January 2023 and April 2023, MCCS had temporary custody of B.H. for 20 months
between November 2021 and December 2023, as the trial court determined. Therefore, the
satisfaction of R.C. 2151.414(B)(1)(d) was supported by clear and convincing evidence. The
trial court’s determination regarding this factor was not against the manifest weight of
evidence or based on insufficient evidence.
Best Interest Factors Under R.C. 2151.414(D)(1)
{¶ 33} When making the best-interest determination, R.C. 2151.414(D)(1) provides
the following factors for the trial court to consider:
(a) The 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;
12 (b) 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;
(c) The custodial history of the child;
(d) 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;
(e) Whether any of the factors in divisions (E)(7) to (11) of
R.C. 2151.414 apply in relation to the parents and child.
R.C. 2151.414(D)(1)(a) through (e).
{¶ 34} “‘[A] court must consider “all relevant factors,” including [the] five enumerated
statutory factors . . . . No one element is given greater weight or heightened significance.’”
In re A.W., 2025-Ohio-5657, ¶ 53 (2d Dist.), quoting In re C.F., 2007-Ohio-1104, ¶ 57,
quoting In re Schaefer, 2006-Ohio-5513, ¶ 56. “‘Juvenile courts need not “expressly discuss
each of the best-interest factors,” and “[c]onsideration is all the statute requires.”’”
(Bracketed text in original.) Id., quoting In re H.V.F., 2024-Ohio-5838, ¶ 41 (2d Dist.), quoting
In re A.M., 2020-Ohio-5102, ¶ 31.
{¶ 35} In reviewing the trial court’s decision, the trial court analyzed all the statutory
factors contained in R.C. 2151.414(D).
a. Child’s Interaction and Interrelationship with Others
{¶ 36} In its decision, the trial court considered B.H.’s relationship with J.S. and C.S.
and noted that B.H. was bonded with them and their extended family, which included an
aunt, three cousins, and a grandparent—C.S.’s mother who frequently provided childcare
for B.H. The trial court also noted that J.S. and C.S. allowed regular contact and visits with
Mother’s grandparents.
13 {¶ 37} Although the trial court noted Mother’s lack of visits with B.H. since September
2023, with the exception of two visits in July 2024, the trial court did not specifically state in
its written decision that it considered Mother’s relationship with B.H. Despite the trial court’s
failure to articulate more in its decision regarding Mother’s relationship with B.H., it had
ample evidence before it regarding Mother’s relationship with B.H. Mother cites the GAL
report in her appellate brief to point out that she was also bonded with B.H. Yet from the
testimony of J.S. and the caseworker, the trial court heard that after B.H. had two supervised
visits with Mother in July 2024, B.H. was emotional and would sometimes cry and need
comforted for days immediately after each visit. The trial court also heard testimony
regarding Mother’s lack of email correspondence with J.S. and C.S., which demonstrated
an absence of interest or effort on Mother’s part regarding B.H. Given the evidence before
the trial court, there was sufficient credible evidence for the court to conclude that this factor
did not weigh in Mother’s favor.
b. Child’s Wishes
{¶ 38} Due to B.H.’s young age of five years old at the time of the permanent custody
hearing, neither the GAL nor MCCS interviewed B.H. regarding her wishes. Thus, the trial
court could not consider this factor. Even if B.H. had been interviewed and expressed a
desire to be with Mother, this factor would not have been dispositive of B.H.’s best interests.
c. Custodial History
{¶ 39} In the trial court’s decision, the court articulated B.H.’s custodial history in
MCCS’s temporary custody that began in August 2021, two months after B.H.’s birth, up to
the permanent custody hearing on October 1, 2024. The custodial history of B.H. spanned
the course of the child’s life. The trial court included Mother’s brief period of interim
temporary custody in January 2023, which resulted in MCCS taking temporary custody back
14 for approximately a month, as well as a second period in April 2023 during which Mother
was granted reunification. The trial court noted that Mother’s reunification was brief, and due
to Mother’s ongoing substance abuse and mental health, MCCS had received temporary
custody again. We conclude the trial court properly weighed this factor against Mother.
d. The Child’s Need for Legally Secure Permanent Placement
{¶ 40} The Ohio Revised Code does not define the term “legally secure permanent
placement”; however, the word “secure” means “free from fear, care, or anxiety,” “affording
safety,” “trustworthy, dependable,” “strong, stable, or firm enough to ensure safety,” and
“capable of being expected or counted on with confidence.” Webster’s Third New
International Dictionary (1966). “A legally secure permanent placement is more than a house
with four walls. Rather, it generally encompasses a stable environment where a child will
live in safety with one or more dependable adults who will provide for the child’s needs.” In
re M.B., 2016-Ohio-793, ¶ 56 (4th Dist.). R.C. 2151.414(D)(1)(d) describes the factor as the
child’s need for the legally secure placement and whether it can be accomplished without
granting permanent custody to an agency.
{¶ 41} The trial court concluded that B.H. needed a legally secure permanent
placement and that the only way this could be achieved was to grant permanent custody to
MCCS. In its decision, the trial court considered J.S. and C.S.’s willingness to adopt B.H.
Additionally, the caseworker testified at the hearing that J.S. and C.S.’s home was “stable,”
indicating a home that B.H. could trust in and rely on. Comparing Mother’s home, though
the court had evidence that Mother maintained the same two-bedroom apartment for years,
the court also had evidence that prior to the hearing, Mother was homeless and that while
staying at a rooming house near the homeless shelter, she had not allowed her caseworker
to enter the residence. Given Mother’s lack of cooperation with her caseworker, at the time
15 of the hearing, the court had no evidence to suggest that Mother was able to provide a
suitable home for B.H., let alone a stable one that B.H. could trust in and rely on. The court
further heard testimony from the caseworker that he had considered Mother’s relatives as
placements, but none of them was an option for B.H. Given the evidence before the trial
court, the trial court appropriately weighed this factor against Mother.
e. Any Other Relevant Factors Contained in R.C. 2151.414(E)(7) Through (11)
{¶ 42} Though most of the factors in R.C. 2151.414(E)(7) through (11) are not
relevant to this matter, the trial court considered R.C. 2151.414(E)(10), which concerns
cases in which “the parent has abandoned the child.” R.C. 2151.011(C) provides that “[f]or
the purposes of [R.C. Ch. 2151], a child shall be presumed abandoned when the parents of
the child have failed to visit or maintain contact with the child for more than ninety days,
regardless of whether the parents resume contact with the child after that period of ninety
days.” We have held the presumption of abandonment is a rebuttable presumption. In re
Custody of C.E., 2005-Ohio-5913, ¶ 12 (2d Dist.).
{¶ 43} The trial court’s decision noted that Mother had two visits with B.H. in July 2024
and that prior to then, she had not visited since September 2023. Although in her appellate
brief Mother blames her caseworker for suspending her visits, the trial court properly applied
the statutory definition of abandonment. The trial court’s statutory finding was based on
sufficient evidence and was not against the manifest weight of evidence. This factor did not
weigh in Mother’s favor.
Case Plan Compliance
{¶ 44} In addition, Mother argues that she completed most of the requirements of her
case plan. Mother appears to argue that completion of the plan, if determined, should tilt the
16 scale of the analysis of the best interests of the child in her favor. Mother’s argument is
unpersuasive.
{¶ 45} The trial court specifically found that Mother did not complete her case plan
requirements as she lost suitable housing, repeatedly failed to maintain sobriety, failed to
sign releases of information to verify treatment or random drug screen results, and otherwise
failed to correct the circumstances that had caused B.H.’s removal. Based on our review of
the evidence, the trial court had sufficient evidence to conclude that Mother did not complete
her case plan.
{¶ 46} Even if we were to conclude that Mother completed her case plan, a parent’s
case plan progress is not dispositive of what is in the best interests of the child. In re T.S.,
2017-Ohio-482, ¶ 12 (2d Dist.). “‘[A] parent’s case plan compliance, while it may be relevant
to a best interest analysis, does not automatically override a trial court’s decision regarding
what is in a child’s best interests.’” In re T.D., 2016-Ohio-7245, ¶ 12 (2d Dist.), quoting In re
M.B., 2016-Ohio-793, ¶ 59 (4th Dist.). “This court has recognized that ‘[w]hen the focus is
on the child’s best interest, a trial court conceivably could terminate parental rights even if a
parent completed all of her case-plan objectives.’” T.S. at ¶ 12, quoting T.D. at ¶ 12
(2d Dist.), citing M.B.
Reasonable Efforts to Prevent Removal or to Ensure Child’s Return Home
{¶ 47} Mother also argues that MCCS failed in its reasonable efforts to prevent B.H.’s
removal and that the trial court’s determination that MCCS made such reasonable efforts
was not supported by sufficient evidence and was against the manifest weight of the
evidence. We are not persuaded by Mother’s argument.
{¶ 48} R.C. 2151.419(A)(1) requires a trial court to determine at any hearing held
pursuant to R.C. 2151.353 “whether the public children services agency . . . that filed the
17 complaint in the case, removed the child from home, has custody of the child, or will be given
custody of the child 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.” R.C. 2151.419(A)(1). The agency has
the burden of proving that it has made reasonable efforts. Id. “In determining whether
reasonable efforts were made, the child’s health and safety shall be paramount.” Id.
{¶ 49} R.C. Chapter 2151 does not define “reasonable efforts,” but the term has been
construed to mean “[t]he state’s efforts to resolve the threat to the child before removing the
child or to permit the child to return home after the threat is removed.” C.F., 2007-Ohio-1104,
at ¶ 28 (2d Dist.). We have defined the term to mean “‘a good faith effort which is “an honest,
purposeful effort, free of malice and the desire to defraud or to seek an unconscionable
advantage.” The issue is not whether [the Agency] could have done more, but whether it did
enough to satisfy the “reasonableness” standard under the statute.’” In re N.M., 2016-Ohio-
318, ¶ 54 (2d Dist.), quoting In re S.F., 2013-Ohio-508, ¶ 21 (2d Dist.), quoting In re Secrest,
2002-Ohio-7096, ¶ 13 (2d Dist.). By contrast, we have stated that “‘“[r]easonable efforts”
does not mean all available efforts. Otherwise, there would always be an argument that one
more additional service, no matter how remote, may have made reunification possible.’” Id.
at ¶ 53, quoting In re K.M., 2004-Ohio-4152, ¶ 23 (12th Dist.). Accord In re C.O., 2015-Ohio-
4290, ¶ 43 (2d Dist.).
{¶ 50} The trial court had sufficient, credible evidence to conclude MCCS made
reasonable efforts to return B.H. back to Mother. There were seven different substance
abuse treatment providers for Mother over the course of three years. Mother was also
provided referrals for mental health, parenting classes, supervised visitations, regular home
visits by MCCS, and contact information for B.H.’s foster parents. MCCS even
18 recommended reuniting Mother and B.H. in 2023. Despite MCCS’s efforts, it was Mother’s
repeated and continuous substance abuse, combined with her mental health, that prevented
B.H. from being returned to her safely.
{¶ 51} Accordingly, the trial court’s permanent custody award to MCCS was based
on sufficient evidence and was not against the manifest weight of evidence. Mother’s first
assignment of error is overruled.
IV. Mother’s Claim of Ineffective Assistance of Trial Counsel
{¶ 52} Mother’s second assignment of error claims that trial counsel was ineffective,
violating her Sixth Amendment right to counsel.
{¶ 53} A parent’s right to counsel arises from the guarantees of due process and
equal protection contained in the constitutions of Ohio and the United States, State ex rel.
Heller v. Miller, 61 Ohio St.2d 6 (1980), paragraph two of the syllabus, as well as Juv.R. 4(A)
and R.C. 2151.352 (“the child’s parents or custodian . . . is entitled to representation by legal
counsel at all stages of the proceedings under this chapter or Chapter 2152. of the Revised
Code”). “That right to counsel includes the right to the effective assistance of trial counsel.”
In re S.A., 2008-Ohio-2225, ¶ 8 (2d Dist.). “The test for ineffective assistance of counsel
used in criminal cases is equally applicable to actions seeking the permanent, involuntary
termination of parental custody.” Id.
{¶ 54} To prevail on an ineffective assistance of counsel claim, a party must establish
that (1) trial counsel’s performance was deficient and (2) the deficient performance caused
prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph two of the syllabus. In order to prove deficient performance, a
defendant must show that “counsel’s performance fell below an objective standard of
reasonable representation.” Strickland at 688. To establish prejudice, “[t]he defendant must
19 show that there is 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.
{¶ 55} “The defendant or petitioner has the burden of proof on the issue of ineffective
assistance of counsel, as licensed attorneys in Ohio are presumed to be competent.” State
v. Southern, 2018-Ohio-4886, ¶ 47 (2d Dist.), citing State v. Calhoun, 86 Ohio St.3d 279,
289 (1999). “Trial counsel is entitled to a strong presumption that all decisions fall within the
wide range of reasonable professional assistance.” In re J.J., 2006-Ohio-6151, ¶ 29
(10th Dist.), citing State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
{¶ 56} After reviewing the record, we find no evidence of deficient performance or
prejudice. Mother argues that counsel failed to prepare for the hearing and advocate for her
interests. But counsel made objections to the caseworker’s testimony during the hearing and
asked questions on cross-examination. Mother also alleges that counsel was deficient for
failing to present evidence. However, the decision not to present a witness or certain
evidence falls within the realm of trial strategy and does not give rise to a claim for ineffective
assistance of counsel. In re S.W., 2024-Ohio-681, ¶ 43 (2d Dist.).
{¶ 57} Mother also claims that counsel failed to communicate with her and inform her
of when the hearing was scheduled. The record establishes that counsel informed the trial
court that he sent Mother an email and left her a voicemail regarding the hearing in July
2024. Counsel did not receive communication back from Mother before the hearing on
October 1, 2024.
{¶ 58} The record also shows that counsel moved to withdraw after receiving the
magistrate’s decision granting permanent custody to MCCS. Counsel’s rationale was to
protect Mother’s interest for the purpose of filing objections. Mother subsequently objected
20 and filed the instant appeal as well. For all these reasons, Mother’s argument is without
merit. Mother’s second assignment of error is overruled.
V. Conclusion
{¶ 59} Having overruled Mother’s two assignments of error, the judgment of the trial
court is affirmed.
.............
TUCKER, J., and HUFFMAN, J., concur.