[Cite as In re M.U., 2014-Ohio-1640.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: M.U., C.U., and J.D. : APPEAL NOS. C-130809 C-130827 : TRIAL NO. F07-2858
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 18, 2014
Susannah M. Meyer, for Appellant Mother,
Erik Laursen, for Appellants M.U. and C.U.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis, for Appellee Guardian Ad Litem.
Please note: this case has been removed from the accelerated calendar. O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Judge.
{¶1} On November 22, 2013, the trial court terminated the parental rights
of mother to her three children, M.U., C.U., and J.D. Mother and two of her
children, M.U. and C.U., now appeal. We affirm the decision of the trial court.
{¶2} The Hamilton County Department of Job and Family Services
(“HCJFS”) became involved in the lives of mother’s children in 2007 when it filed a
complaint alleging that the children were dependent. Mother suffered from mild
mental retardation, and HCJFS was concerned that she was unable to provide a safe
environment for the children. Her care for the children was inconsistent and, at
times, inadequate. In addition, HCJFS was concerned with mother’s involvement
with men who presented a risk to the children. One man from Iowa moved in with
mother after she had known him for about one week through only telephone
conversations. This man had a history of substance abuse and a criminal record.
While living in the home, he refused to participate in either a diagnostic or
substance-abuse assessment through HCJFS. Eventually, allegations arose that the
man was sexually assaulting one of the children. An investigation commenced, but
was halted when the child refused to cooperate with workers from the Mayerson
Center. Mother eventually obtained a restraining order against him. The magistrate
determined that the children could remain with mother, with various protective
orders in place, and a pending motion to terminate her parental rights was denied in
June 2008.
{¶3} One month later, HCJFS filed a new complaint alleging that the
children were neglected and dependent, and requesting temporary custody. The
home had bed bugs, and this prevented the children from attending the protective
2 O HIO F IRST D ISTRICT C OURT OF A PPEALS
daycare that had been part of the June 2008 order. In addition, HCJFS alleged that
mother was not attending to the children’s basic needs. M.U. had glass embedded in
her foot, J.D. was wearing a filthy diaper, and all three children were dirty. HCJFS
further alleged that the home was filthy, and that the children were not receiving
proper nutrition or medical care. The magistrate adjudicated the children dependent
and granted the request for temporary custody. Mother was offered numerous
programs to help her improve her parenting skills.
{¶4} At a case review hearing one year later, HCJFS announced the
decision to again seek termination of mother’s parental rights. While mother had
made some progress with her parenting skills, she did not seem to be making lasting
changes in her behavior or decision-making. In addition, HCJFS had learned that
mother had begun seeing a registered sex offender. This man, whom mother had
met on the internet, had been convicted of a sex offense involving a minor. She also
became involved with another man, with whom she had a child that was placed with
the father’s parents. As a result of these relationships, HCJFS was concerned that
she was still making bad decisions regarding the men with whom she involved
herself.
{¶5} After conducting the permanent-custody trial, the magistrate
determined that mother’s progress with the various programs in which she had been
enrolled demonstrated that she had advanced to the point where the children could
return to her custody. Regarding her judgment about men, the magistrate noted his
concern that this issue had not been addressed in her counseling, and determined
that it could properly be addressed through counseling and the issuance of a
protective order requiring that mother have no other adult living in the home and
3 O HIO F IRST D ISTRICT C OURT OF A PPEALS
that she report the identity of any adult who had regular contact with the children to
HCJFS and the children’s guardian ad litem.
{¶6} On June 11, 2012, HCJFS filed an amended complaint alleging that
the children were dependent, and seeking permanent custody. The agency once
again complained that mother was exercising poor judgment when it came to the
men with whom she associated. The agency presented evidence that mother had
violated the court’s protective orders by allowing at least two men to live in her home
and have ongoing contact with the children without providing notice to HCJFS or the
children’s guardian. She actively concealed her relationships and the children’s
contact with these men, and indicated that she did not believe that she was required
to comply with the court’s orders for protective supervision. The children reported
that at least one of the men was mean, had stolen property from mother, had hit the
children, and had disciplined them without mother’s knowledge. The identities and
background of the men were unknown—other than the fact that the children knew
one of them as “Michael”—because HCJFS was unable to investigate them. The
magistrate found the children to be dependent and granted HCJFS’s motion for
permanent custody. The trial court overruled the objections filed by M.U. and C.U.,
as well as those filed by mother.
{¶7} In her first assignment of error, mother claims that her counsel was
ineffective for failing to seek dismissal of HCJFS’s motion for permanent custody
because the trial court failed to timely rule on it. To have the case reversed on a
claim of ineffective assistance of counsel, mother must prove that counsel violated an
essential duty that he owed to her and that she was prejudiced by the violation. See
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); see also Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny
4 O HIO F IRST D ISTRICT C OURT OF A PPEALS
of counsel's performance must be highly deferential. An appellant must overcome
the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland at 689. An appellant is not deprived of
effective assistance of counsel when counsel chooses, for strategic reasons, not to
pursue every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528
N.E.2d 523 (1988).
{¶8} R.C. 2151.35(B)(1) requires that, when the state seeks permanent
custody of a child, the dispositional hearing on that motion must be held within 90
days. If it is not, “the court, on its own motion or the motion of any party or the
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[Cite as In re M.U., 2014-Ohio-1640.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: M.U., C.U., and J.D. : APPEAL NOS. C-130809 C-130827 : TRIAL NO. F07-2858
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 18, 2014
Susannah M. Meyer, for Appellant Mother,
Erik Laursen, for Appellants M.U. and C.U.,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Marjorie Davis, for Appellee Guardian Ad Litem.
Please note: this case has been removed from the accelerated calendar. O HIO F IRST D ISTRICT C OURT OF A PPEALS
D INKELACKER , Judge.
{¶1} On November 22, 2013, the trial court terminated the parental rights
of mother to her three children, M.U., C.U., and J.D. Mother and two of her
children, M.U. and C.U., now appeal. We affirm the decision of the trial court.
{¶2} The Hamilton County Department of Job and Family Services
(“HCJFS”) became involved in the lives of mother’s children in 2007 when it filed a
complaint alleging that the children were dependent. Mother suffered from mild
mental retardation, and HCJFS was concerned that she was unable to provide a safe
environment for the children. Her care for the children was inconsistent and, at
times, inadequate. In addition, HCJFS was concerned with mother’s involvement
with men who presented a risk to the children. One man from Iowa moved in with
mother after she had known him for about one week through only telephone
conversations. This man had a history of substance abuse and a criminal record.
While living in the home, he refused to participate in either a diagnostic or
substance-abuse assessment through HCJFS. Eventually, allegations arose that the
man was sexually assaulting one of the children. An investigation commenced, but
was halted when the child refused to cooperate with workers from the Mayerson
Center. Mother eventually obtained a restraining order against him. The magistrate
determined that the children could remain with mother, with various protective
orders in place, and a pending motion to terminate her parental rights was denied in
June 2008.
{¶3} One month later, HCJFS filed a new complaint alleging that the
children were neglected and dependent, and requesting temporary custody. The
home had bed bugs, and this prevented the children from attending the protective
2 O HIO F IRST D ISTRICT C OURT OF A PPEALS
daycare that had been part of the June 2008 order. In addition, HCJFS alleged that
mother was not attending to the children’s basic needs. M.U. had glass embedded in
her foot, J.D. was wearing a filthy diaper, and all three children were dirty. HCJFS
further alleged that the home was filthy, and that the children were not receiving
proper nutrition or medical care. The magistrate adjudicated the children dependent
and granted the request for temporary custody. Mother was offered numerous
programs to help her improve her parenting skills.
{¶4} At a case review hearing one year later, HCJFS announced the
decision to again seek termination of mother’s parental rights. While mother had
made some progress with her parenting skills, she did not seem to be making lasting
changes in her behavior or decision-making. In addition, HCJFS had learned that
mother had begun seeing a registered sex offender. This man, whom mother had
met on the internet, had been convicted of a sex offense involving a minor. She also
became involved with another man, with whom she had a child that was placed with
the father’s parents. As a result of these relationships, HCJFS was concerned that
she was still making bad decisions regarding the men with whom she involved
herself.
{¶5} After conducting the permanent-custody trial, the magistrate
determined that mother’s progress with the various programs in which she had been
enrolled demonstrated that she had advanced to the point where the children could
return to her custody. Regarding her judgment about men, the magistrate noted his
concern that this issue had not been addressed in her counseling, and determined
that it could properly be addressed through counseling and the issuance of a
protective order requiring that mother have no other adult living in the home and
3 O HIO F IRST D ISTRICT C OURT OF A PPEALS
that she report the identity of any adult who had regular contact with the children to
HCJFS and the children’s guardian ad litem.
{¶6} On June 11, 2012, HCJFS filed an amended complaint alleging that
the children were dependent, and seeking permanent custody. The agency once
again complained that mother was exercising poor judgment when it came to the
men with whom she associated. The agency presented evidence that mother had
violated the court’s protective orders by allowing at least two men to live in her home
and have ongoing contact with the children without providing notice to HCJFS or the
children’s guardian. She actively concealed her relationships and the children’s
contact with these men, and indicated that she did not believe that she was required
to comply with the court’s orders for protective supervision. The children reported
that at least one of the men was mean, had stolen property from mother, had hit the
children, and had disciplined them without mother’s knowledge. The identities and
background of the men were unknown—other than the fact that the children knew
one of them as “Michael”—because HCJFS was unable to investigate them. The
magistrate found the children to be dependent and granted HCJFS’s motion for
permanent custody. The trial court overruled the objections filed by M.U. and C.U.,
as well as those filed by mother.
{¶7} In her first assignment of error, mother claims that her counsel was
ineffective for failing to seek dismissal of HCJFS’s motion for permanent custody
because the trial court failed to timely rule on it. To have the case reversed on a
claim of ineffective assistance of counsel, mother must prove that counsel violated an
essential duty that he owed to her and that she was prejudiced by the violation. See
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); see also Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny
4 O HIO F IRST D ISTRICT C OURT OF A PPEALS
of counsel's performance must be highly deferential. An appellant must overcome
the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland at 689. An appellant is not deprived of
effective assistance of counsel when counsel chooses, for strategic reasons, not to
pursue every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528
N.E.2d 523 (1988).
{¶8} R.C. 2151.35(B)(1) requires that, when the state seeks permanent
custody of a child, the dispositional hearing on that motion must be held within 90
days. If it is not, “the court, on its own motion or the motion of any party or the
guardian ad litem of the child, shall dismiss the complaint without prejudice.”
{¶9} Mother argues that trial counsel is necessarily ineffective in failing to
seek dismissal whenever the deadline set by R.C. 2151.35(B)(1) passes. We cannot
accept this proposition. The problem with this argument is that it supposes that
there is no situation in which competent trial counsel would decide that it was better
to proceed with the matter than to seek dismissal.
{¶10} Dismissal of a parental-termination case without prejudice is not
always the best outcome for the parties involved—even for the parents. The Ohio
Supreme Court discussed a similar issue when analyzing another statute, R.C.
2151.35(B)(3). That statute provides that a juvenile court must enter its disposition
of a child adjudicated as abused, neglected or dependent within seven days of the
conclusion of the hearing. In re Davis, 84 Ohio St.3d 520, 523, 705 N.E.2d 1219
(1999). Finding that the statutory deadline was not mandatory, the court reasoned
that:
a missed deadline would require either that the child be returned to a
potentially risky home situation, or that a new complaint be filed and
5 O HIO F IRST D ISTRICT C OURT OF A PPEALS
the process begun anew, delaying the final resolution of the issue even
further. Such consequences would not serve the interests of children,
who are too often relegated to temporary custody for too long.
Id. at 523.
{¶11} The same rationale applies when considering the time limitation
imposed by R.C. 2151.35(B)(1). There are certainly situations, such as the case at bar,
in which competent counsel would not seek dismissal of the permanent-custody
petition without prejudice. Dismissal would have only delayed the proceedings
further, and would not have allowed mother the continued opportunity to show
compliance with the trial court’s orders and progress in the various programs in
which she participated. And there is nothing in the record to suggest that dismissal
would have ended the case. The history of the case indicates that HCJFS would
certainly have refiled its request for the termination of mother’s parental rights had
the case been dismissed without prejudice under the statute. Furthermore, there is
no evidence in the record that mother even wanted to expedite the matter, as she had
expressly waived “any objection to the completion of the adjudication and/or
disposition within 90 days of the filing of the complaint” at the first hearing held
after the 90-day period had expired. It is also worth noting that, not only was
mother represented by trial counsel, but also, because of her mental health issues,
the trial court had appointed her a guardian ad litem. So, in this case, mother’s
interests were protected by two professionals over the course of this seven-year
process.
{¶12} In light of this record, the detrimental impact that having the case
begin anew would have had on all parties involved, and the deference that courts
afford to the tactical decisions of trial counsel, we cannot say that mother has shown
6 O HIO F IRST D ISTRICT C OURT OF A PPEALS
that counsel was ineffective in this case. Therefore, we overrule her first assignment
of error.
{¶13} In mother’s second assignment of error, she claims that the trial court
erred when it failed to properly consider the factors listed in R.C. 2151.414(D)(1) in
support of its decision to terminate her parental rights. In a related assignment of
error, M.U. and C.U. specifically argue that the trial court failed to properly consider
their wishes, as required by R.C. 2151.414(D)(1)(b). We disagree.
{¶14} Before it could grant permanent custody to HCJFS, the trial court was
required to determine by clear and convincing evidence that permanent custody was
in the best interest of the children. See R.C. 2151.414(B); In re Schaefer, 111 Ohio
St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. Under R.C. 2151.414(D)(1), to
determine a child's best interest,
the court shall consider all relevant factors, including, but not limited
to, the following:
(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;
(b) The wishes of the child, as expressed directly by the child or
through the child's guardian ad litem, with due regard to 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;
7 O HIO F IRST D ISTRICT C OURT OF A PPEALS
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
“There is not one element that is given greater weight than the others pursuant to the
statute.” Schaefer at ¶ 56.
{¶15} We conclude that the trial court considered each of the factors listed
above, including its consideration of the fact that M.U. and C.U. had “expressed a
desire to return to Mother’s home.” But the trial court concluded that this one factor
supporting reunification did not outweigh the factors that supported termination of
mother’s parental rights. She refused to properly notify HCJFS and the children’s
guardian ad litem about the men that she brought into the lives of her children, and
stated that she did not think she had to follow the court’s order in that regard. And
her decisions regarding men have been a problem in this case since its inception in
2007. Additionally, the children’s guardian ad litem joined HCJFS in its opposition
to reunification. Therefore, there was ample justification in the record to support the
decision of the trial court to terminate mother’s parental rights, even though the
children wished to return to her. We overrule mother’s second assignment of error
and the sole assignment of error of M.U. and C.U.
{¶16} Having considered and overruled all assignments of error, we affirm
the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J., and HILDEBRANDT, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.