In re L.J. W.

2016 Ohio 7054

• Court: Ohio Court of Appeals
• Decided: September 28, 2016
• Docket: 16 COA 013
• Status: Published

Opinion

[Cite as In re L.J. W., 2016-Ohio-7054.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. Sheila G. Farmer, P. J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. L. J. W. Case No. 16 COA 013 A DEPENDENT CHILD OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2014 0207

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 28, 2016

APPEARANCES:

For Appellant-Mother For Appellee ACDJFS

KAREN DESANTO-KELLOGG CHRISTOPHER R. TUNNELL 432 Center Street PROSECUTING ATTORNEY Ashland, Ohio 44805 EMILY M. BATES ASSISTANT PROSECUTOR 110 Cottage Street, Third Floor Ashland, Ohio 44805 Ashland County, Case No. 16 COA 013 2

Wise, J.

{¶1} Appellant-Mother Chelsea Fown Hoos appeals the decision of the Ashland

County Court of Common Pleas, Juvenile Division, which granted a dispositional order of

legal custody of appellant’s son to the child’s paternal grandmother. The relevant facts

leading to this appeal are as follows:

{¶2} The child at the center of this case is L.J.W., born in 2007 to appellant and

Geremy Woods. On August 4, 2014, as a result of a dependency complaint, L.J.W. was

ordered into the shelter care of the Ashland County Department of Job and Family

Services, Children Services Division ("ACDJFS"). Included in the agency’s complaint

were concerns about caregiver drug use.

{¶3} On December 3, 2014, following L.J.W.’s adjudication as a dependent child,

the case proceeded to disposition. At the time of said dispositional hearing, both parents

were facing indictments for felony drug charges. The trial court, via a judgment entry

issued February 13, 2015, proceeded to maintain the child in the temporary custody of

ACDJFS.1

{¶4} In July and August 2015, appellant-mother filed several pleadings

requesting custody of L.J.W. However, on August 25, 2015, ACDJFS requested via

written motion that the trial court modify its prior disposition and grant legal custody of the

child to his paternal grandmother, Valerie Woods. On the same day, ACDJFS filed a

motion for contempt of court against appellant. An evidentiary hearing on the various

motions took place on January 8, 2016. Appellant did not appear. Appellant's trial attorney

1 We surmise that these proceedings were under a different trial court case number, as the trial court filings before us did not commence until July 9, 2015. Ashland County, Case No. 16 COA 013 3

advised the court that appellant was aware of her obligation to come to the hearing, but

that she would not be attending. See Tr. at 5-7. However, appellant’s trial attorney did not

request a continuance on the record. See Tr. at 7-8.

{¶5} Although the trial court considered issuing a warrant for appellant's arrest,

that issue was apparently taken under advisement, and the court then went forward with

the hearing. See Tr. at 5-8. Among other things, the agency’s ongoing caseworker,

Jennifer Boerwinkle, testified that L.J.W. had been placed with his paternal grandmother,

Valerie Woods, since initial agency involvement in July 2014. Tr. at 10. The caseworker

also testified that the child was “well bonded” with Ms. Woods, and that his needs were

met at Ms. Woods' home. Tr. at 15. Furthermore, Ms. Woods testified that she had taken

foster parenting classes in an attempt to become a licensed foster parent. Tr. at 82.

{¶6} On February 3, 2016, after taking the matter under advisement, the trial

court issued a fifteen-page judgment entry awarding legal custody of L.J.W. to Ms.

Woods, with accompanying orders addressing parenting time, child support, and other

matters.

{¶7} Appellant filed a notice of appeal on February 8, 2016. She herein raises

the following sole Assignment of Error:

{¶8} “I. APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED AS A

RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL.”

I.

{¶9} In her sole Assignment of Error, appellant contends she received ineffective

assistance of trial counsel during the proceedings leading to the trial court’s decision to

award legal custody of L.J.W. to his paternal grandmother. Ashland County, Case No. 16 COA 013 4

{¶10} A parent has a fundamental liberty interest in the care, custody, and

management of his or her child. See In re Gower/Evans Children, 5th Dist. Tuscarawas

No. 06AP060034, 2006-Ohio-5676, 2006 WL 3071339, ¶ 28, citing Santosky v. Kramer

(1982), 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599. In Ohio, the statutorily

permissible dispositional alternatives in a dependency, neglect, or abuse case are

enumerated in R.C. 2151.353(A). See, e.g., In re S.Y., 5th Dist. Tuscarawas No.

2011AP040018, 2011–Ohio–4621, ¶ 31. In particular, R.C. 2151.353(A)(3) provides: “If a

child is adjudicated an abused, neglected, or dependent child, the court may make any

of the following orders of disposition: * * * Award legal custody of the child to either parent

or to any other person who, prior to the dispositional hearing, files a motion requesting

legal custody of the child or is identified as a proposed legal custodian in a complaint or

motion filed prior to the dispositional hearing by any party to the proceedings. ***.”

{¶11} In comparison, the disposition of committing an abused, neglected, or

dependent child to the permanent custody of a public children services agency or private

child placing agency is addressed in R.C. 2151.353(A)(4). Thus, legal custody and

permanent custody in this context are alternative dispositional choices. See In re Fell, 5th

Dist. Guernsey No. 2004-CA-39, 2005-Ohio-2415, ¶ 17.

{¶12} This Court has recognized “ineffective assistance” claims in permanent

custody appeals. See, e.g., In re Utt Children, 5th Dist. Stark No. 2003CA00196, 2003–

Ohio–4576. However, we have not expanded the doctrine of ineffective assistance of

counsel beyond criminal cases and those involving permanent custody. See In re

Logwood, 5th Dist. Guernsey No. 2004–CA–38, 2005–Ohio–3639, ¶ 26. The matter

before us did not result in an order of permanent custody to ACDJFS. See, also, R.C. Ashland County, Case No. 16 COA 013 5

2151.011(B)(32). We therefore will not further address appellant's sole Assignment of

Error. Accord In re W.A., 5th Dist. Muskingum No. CT2013-0002, 2013-Ohio-3444, ¶¶ 31-

33.

{¶13} For the reasons stated in the foregoing opinion, the decision of the Court of

Common Pleas, Juvenile Division, Ashland County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Hoffman, J., concur.

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