In re B.M.

2024 Ohio 1871

Opinion

[Cite as In re B.M., 2024-Ohio-1871.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF B.M. : JUDGES: : Hon. Patricia A. Delaney, P.J. : Hon. Craig R. Baldwin, J. : Hon. William B. Hoffman, J. : : : Case No. 2024 AP 02 0004 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 2022 JN 00291

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 15, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

DIANA E. DUDGEON LISA VITALE ARNOLD Dudgeon & Nabors Law Group Tuscarawas County Job 141 Front Avenue SE and Family Services P.O. Box 133 389 16th Street SW New Philadelphia, Ohio 44663 New Philadelphia, Ohio 44663

Guardian Ad Litem

NIKKI REED 401 Tuscarawas Street W. Suite 201 Canton, Ohio 44702 Tuscarawas County, Case No. 2024 AP 02 0004 2

Baldwin, J.

{¶1} The Mother of B.M. (“the appellant”) appeals the decision of the Tuscarawas

Court of Common Pleas, Juvenile Division, granting permanent custody of the children to

the appellee, Tuscarawas County Job and Family Services (“the Agency”).

STATEMENT OF THE FACTS AND THE CASE

{¶2} B.M. was born on May 22, 2017. The appellant is the biological mother of

B.M. J.M. is the biological father of B.M.

{¶3} On October 19, 2022, the Agency received an ex parte emergency order of

removal for B.M. due to allegations regarding parental substance abuse, J.M.’s

incarcerations, and housing concerns.

{¶4} On October 20, 2022, the Court held a Shelter Care hearing and granted

the Agency temporary custody of B.M.

{¶5} On October 21, 2022, the Agency filed a Complaint alleging B.M. was

neglected and dependent.

{¶6} On November 22, 2022, the trial court held a hearing where the appellant

stipulated to findings of neglect and dependency.

{¶7} On December 20, 2022, the trial court adopted a case plan filed by the

Agency.

{¶8} On September 15, 2023, the agency filed a motion to extend temporary

custody of B.M. but withdrew the motion on October 6, 2023, because of the appellant’s

substance abuse relapse and voluntarily leaving substance abuse treatment.

{¶9} On January 16, 2024, the trial court held a hearing on the Agency’s Motion

for Permanent Custody. Tuscarawas County, Case No. 2024 AP 02 0004 3

{¶10} At the hearing, Malissa Cantarero testified that she is a caseworker with the

Agency and was assigned to B.M.’s case. In September of 2022, the Agency was made

aware that B.M.’s father was arrested due to a probation search where law enforcement

found firearms and narcotics; the Agency staff found the home not appropriate. Ceiling

tiles were falling due to water damage in rooms where B.M. was staying. The appellant

and B.M. were taken to a homeless shelter. The appellant was asked to leave the shelter

as she tested positive for various drugs and was caught using another person’s urine to

try to cheat the drug tests.

{¶11} Ms. Cantarero testified that the Agency developed case plans for the

appellant, J.M., and B.M. to work toward reunification. The appellant and J.M. were to

maintain a sober lifestyle, abstain from drugs or alcohol, keep clean, sanitary, safe, and

stable housing over a period of time, and submit to drug screens. They also were required

to attend, participate, and cooperate fully in a drug and alcohol assessment, a

psychological evaluation, counseling, participate in family meetings and a parenting

program. They had to maintain legal employment, cooperate with the Agency, sign all

necessary releases of information, and meet with a caseworker or mentor regularly.

{¶12} The appellant obtained housing in October of 2022 and remained there until

a fire elsewhere in the building in May of 2023. She then lived in a hotel until August of

2023. In August, she moved into a townhouse and has lived there since. The appellant

did well at the beginning of the case plan. She went to treatment and completed a drug

and alcohol assessment. She attended counseling, obtained employment at McDonald’s,

and then went to work for Park Center. She was fired from Park Center and returned to

McDonald’s. She then obtained employment at the hotel where she stayed and was fired Tuscarawas County, Case No. 2024 AP 02 0004 4

after one day. She then went to work at Tastee Apple but quit in August with J.M. when

they relapsed into drug use. She was not employed at the time of the hearing. She

completed a psychological evaluation and assisted in her case planning goals. She

submitted to drug screens until a negative test in August of 2023.

{¶13} The appellant took twenty-four drug tests. In the first three, she tested

positive for THC, Amphetamine, and Methamphetamine. She then tested negative for any

non-prescribed controlled substances from November 4, 2022, through July 25, 2023.

Then in five of her last six drug tests, she tested positive for controlled substances,

including Fentanyl, Amphetamine, and Methamphetamine. She refused several drug

tests in September, October, and November of 2023.

{¶14} When the Agency sought reunification in August of 2023, the appellant

started missing appointments with her mentor and psychiatrist. She was no longer

communicating with her counselor and the foster mother. The Agency reached out to

attempt to get the appellant to come to the Agency for a drug test. The appellant started

making excuses, saying she could not get in because she was visiting J.M.’s kids in

another county. Ms. Cantarero informed the appellant that this would be a refusal and

result in a positive drug screening. The appellant then decided to come into the Agency.

Upon arriving, she looked very sick, was sweating, and had a fever. She claimed to have

the flu. Ms. Cantarero testified it was evident that she was either high or coming down

from a high. At this time, she tested positive for fentanyl. The appellant restarted treatment

but did not comply. During a session, she tested positive for Methamphetamine. She

entered into residential treatment but then checked herself out against medical advice. Tuscarawas County, Case No. 2024 AP 02 0004 5

{¶15} The appellant notified Ms. Cantarero on January 12, 2024, that she left J.M.

and was in residential treatment in Portsmouth, Ohio. Ms. Cantarero had to seek contact

with the appellant from when she checked out of residential treatment until January 12,

2024. The appellant was not communicating with the Agency, her mentor, or anyone

other than J.M. Ms. Cantarero, who could not locate her the entire month of November

and only saw her in December because the appellant was in jail. She was released from

jail on December 28, 2023. She told Ms. Cantarero she would check into residential

treatment on January 3, 2024. Ms. Cantarero set a meeting with the appellant on

December 29, 2023. The appellant did not attend the appointment on December 29,

2023, and did not check in on January 3, 2024. Ms. Cantarero attempted to contact her

via phone, and the appellant pretended not to know who Ms. Cantarero was. Ms.

Cantarero identified herself, but the appellant never responded.

{¶16} On January 7, 2024, Ms. Cantarero noticed a missed call from the appellant.

Ms. Cantarero called her back. The appellant did not seem to know who Ms. Cantarero

was and was she was acting strangely. She said she was not going to give up. Ms.

Cantarero did not hear from the appellant until January 12, 2024.

{¶17} The appellant completed a parenting course with the Agency, a

psychological evaluation at The Village Network, and a drug and alcohol assessment.

She signed all the necessary releases, and, at the beginning, she was completely

compliant with the Agency’s requests.

{¶18} J.M. failed to maintain a sober lifestyle. On June 6, 2023, he was released

from prison. They did not inform Ms. Cantarero of his release. He tried treatment at two

separate facilities and quit going to both. He attended two or three group treatment Tuscarawas County, Case No. 2024 AP 02 0004 6

sessions. He met twice with a counselor and tested positive for methamphetamines

during the second meeting. He missed several appointments for treatment and

counseling. He completed a psychological evaluation.

{¶19} He tested positive for controlled substances during ten drug screens. The

positive tests included amphetamines, methamphetamines, and buprenorphine.

{¶20} He was required to maintain lawful employment. He obtained employment

at Case Farms but never showed up for work. He then got a job at Tastee Apple for a

short period of time but quit. He met with a mentor until his relapse in August of 2023. He

took responsibility for the appellant’s relapse because they did it together.

{¶21} As of the day of the hearing, J.M. was arrested for domestic violence and in

Tuscarawas County Jail.

{¶22} Ms. Cantarero said that through October 6, 2023, the appellant had

substantially completed her case plan, but after the relapse, her progress fell apart. As of

the hearing, Ms. Cantarero does not believe the appellant remedied the concerns that led

to B.M.’s removal. The appellant has six children who are either in the care of a family or

kinship provider and lost permanent custody of one child.

{¶23} B.M. is doing great in foster care. She is developmentally on target. She

has bonded with her foster parents and siblings. She has no behavior issues and no

health issues. The foster parents are interested in adopting B.M.

{¶24} Ms. Cantarero does not believe it is possible for B.M. to be placed with either

the appellant or J.M. and found no family appropriate to place B.M. B.M. needs to be

placed in a permanent, stable home in order to thrive. Tuscarawas County, Case No. 2024 AP 02 0004 7

{¶25} On redirect examination, Ms. Cantarero stated that they initially filed a

Motion to Extend Temporary Custody. However, they recalled the motion because the

appellant left inpatient treatment against medical advice and was still in a relapse.

{¶26} Next, Dr. Steven Dean testified he is employed at The Village Network as a

psychologist. Dr. Dean noted that the appellant had significant trouble with drug abuse.

The appellant was a daily user of both heroin and methamphetamine at one point in her

life. She indicated that she had a lapse for several months prior to January of 2023. She

has a history of domestic violence and being a victim of domestic violence in her

relationships. She has at least six children with four different men and does not have

much stability in her relationships. She also suffers from high anxiety, has trouble

managing anger, setting healthy limits with others, and being assertive.

{¶27} Dr. Dean diagnosed the appellant with generalized anxiety disorder,

stimulant use disorder, and opiate use disorder. He instructed her to avoid any further

use of drugs. She was not able to effectively parent while under the influence of illegal

substances.

{¶28} J.M. has a significant problem with drugs, both heroin and

methamphetamines. He had one long term relationship for which he had three children.

It ended because of his repeated imprisonment. He has a fourth child with a very brief

relationship. And now he had been in a two-year relationship with the appellant and they

have a child together.

{¶29} Dr. Dean diagnosed J.M. with anxiety disorder and antisocial personality

disorder. He instructed him to stay free of drugs, to obtain employment, and to participate

in therapy. Tuscarawas County, Case No. 2024 AP 02 0004 8

{¶30} Next, Nikki Reed testified that she is B.M.’s Guardian ad Litem. At the

beginning of the case, the appellant was very good at remaining in contact her and did

an excellent job. Ms. Reed was not informed when J.M. was released from prison. After

the appellant moved out of the hotel, the Guardian ad Litem never had contact with the

appellant again. She has never spoken to J.M.

{¶31} Early in the case, she had no concerns about the appellant. However, the

appellant’s relapse caused the Guardian ad Litem to have major concerns about B.M.

being placed with the appellant.

{¶32} J.M. did not complete much of his case plan, had a significant criminal

history, and continued his drug use. It would not be appropriate to place B.M. with J.M.

{¶33} Next, the appellant testified that she is in a residential treatment facility and

has been since January 8, 2024. She explained that J.M. returning home from prison, the

fire happening in her apartment complex, and having a miscarriage in July of 2023 caused

her to relapse. J.M. continued his drug use, and she accepted when he offered.

{¶34} The appellant testified that she has seven children and currently does not

have custody of any of them. She has been in outpatient rehab twice and inpatient rehab

four times. Her longest period of sobriety was a year and a half, which was before she

met J.M.

{¶35} On January 16, 2024, the trial court granted the Agency’s Motion for

Permanent Custody.

{¶36} The appellant timely filed a notice of appeal and raised the following

Assignment of Error: Tuscarawas County, Case No. 2024 AP 02 0004 9

{¶37} “I. THE APPELLANT WAS DEPRIVED OF HER RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL WHEN HER TRIAL COUNSEL FAILED TO FULLY

REPRESENT THE APPELLANT BY FAILING TO PETITION THE COURT FOR AN

ORDER EXTENDING THE CASE FOR SIX MONTHS AND BY FAILING TO FULLY

LITIGATE THE MATTER BY DECLINING TO CROSS EXAMINE APPELLEE’S

WITNESSES.”

STANDARD OF REVIEW

{¶38} The standard of review for ineffective assistance of counsel was set forth in

the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), and was discussed by this court in Mansfield v. Studer, 5th Dist. Richland

Nos. 2011-CA-93 and 2011-CA-94, 2012-Ohio-4840:

A claim of ineffective assistance of counsel requires a two-prong

analysis. The first inquiry is whether counsel’s performance fell below an

objective standard of reasonable representation involving a substantial

violation of any of defense counsel’s essential duties to appellant. The

second prong is whether the appellant was prejudiced by counsel’s

ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 133 S.Ct. 838 (1993);

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

{¶39} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111,

129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). Tuscarawas County, Case No. 2024 AP 02 0004 10

{¶40} To show deficient performance, the appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland at 688.

This requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Strickland at 687. Counsel also has a duty to bring to bear such skill and knowledge as

will render the trial a reliable adversarial process. Strickland at 688.

Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct. A convicted

defendant making a claim of ineffective assistance must identify the acts or

omissions of counsel that are alleged not to have been the result of

reasonable professional judgment. The court must then determine whether,

in light of all the circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel’s function, as

elaborated in prevailing professional norms, is to make the adversarial

testing process work in the particular case. At the same time, the court

should recognize that counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.

Id.

In light of “the variety of circumstances faced by defense counsel

[and] the range of legitimate decisions regarding how best to represent a Tuscarawas County, Case No. 2024 AP 02 0004 11

criminal defendant,” the performance inquiry necessarily turns on “whether

counsel’s assistance was reasonable considering all the circumstances.”

Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all

points, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at

2064.

Struder, supra, at ¶¶58-61. Even debatable trial tactics and strategies do not constitute

ineffectiveness assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d

1189 (1980).

{¶41} Thus, in order to prevail on an ineffective assistance of counsel argument

the appellant must show both: 1) that his trial counsel’s performance fell below an

objective standard of reasonable representation involving a substantial violation of an

essential duty the appellant; and, 2) that the was prejudiced by such the alleged

ineffectiveness.

ANALYSIS

Failure to file a Motion to Extend the case for six months

{¶42} The appellant argues that trial counsel was ineffective for not moving for an

extension of temporary custody to the Agency to give the appellant more time to complete

her case plan. We disagree.

{¶43} “R.C. 2151.415 does not provide that a parent may file a request for an

extension of temporary custody to the agency.” Matter of A.B., 5th Dist. Tuscarawas No.

2023AP020013, 2023-Ohio-2679, 222 N.E.3d 712, ¶40, citing In the Matter of T.G., 5th

Dist. Stark Nos. 2021CA00119, 2021CA00120, 2021CA00121, 2022-Ohio-1213. Tuscarawas County, Case No. 2024 AP 02 0004 12

Additionally, the trial court found that B.M. could not or should not be placed with either

the appellant or J.M. within a reasonable period of time. R.C. §2151.414. As the appellant

does not have a legal basis for filing an extension of temporary custody, trial counsel’s

performance did not fall below an objective standard of reasonable representation.

Decision not to cross-examine witnesses

{¶44} The appellant also argues that trial counsel was deficient for not cross-

examining Dr. Dean and the Guardian ad Litem. We disagree.

{¶45} Again, even debatable trial tactics and strategies do not constitute

ineffectiveness assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d

1189 (1980). The Ohio Supreme Court has recognized that if counsel, for strategic

reasons, decides not to pursue every possible trial strategy, a defendant is not denied

effective assistance of counsel. State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1

988). “The strategic decision not to cross-examine witnesses is firmly committed to trial

counsel’s judgment.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d

263. The decision to cross-examine witnesses is within trial counsel’s discretion and

generally cannot form the basis for a claim of ineffective assistance of counsel. State v.

Jefferson, 5th Dist. Richland No. 18CA2, 2019-Ohio-156. Accordingly, trial counsel’s

performance did not fall below an objective standard of reasonable representation by

deciding not to cross-examine Dr. Dean and the Guardian ad Litem.

{¶46} Therefore, the appellant’s sole Assignment of Error is overruled. Tuscarawas County, Case No. 2024 AP 02 0004 13

CONCLUSION

{¶47} The decision of the Tuscarawas County Common Pleas Court, Juvenile

Division, is affirmed.

By: Baldwin, J.

Delaney, P.J. and

Hoffman, J. concur.