In re R.F.

2014 Ohio 788

Opinion

[Cite as In re R.F., 2014-Ohio-788.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. R.F., JR. Case No. 13 CA 95

A DEPENDENT CHILD OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. F2011- 0545

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 3, 2014

APPEARANCES:

For Appellee LCJFS For Appellant Mother

KENNETH W. OSWALT JOHN D. WEAVER PROSECUTING ATTORNEY 542 South Drexel Avenue JAMES MILLER Bexley, Ohio 43209 ASSISTANT PROSECUTOR 20 South Second Street, 4th Floor Newark, Ohio 43055 Licking County, Case No. 13 CA 95 2

Wise, J.

{¶1}. Appellant Christina Laroe appeals the decision of the Licking County Court

of Common Pleas, Juvenile Division, which granted permanent custody of her son, R.F.,

Jr. to Appellee Licking County Job and Family Services (“LCJFS”). The relevant facts

leading to this appeal are as follows.

{¶2}. R.F., Jr., born in October 2010, is the son of Appellant Laroe and R.F.,

Sr.1 On September 13, 2011, LCJFS filed a complaint alleging dependency, based on

concerns of domestic violence between the parents, as well as issues of homelessness,

unemployment, mental health diagnoses, anger management, and suspected drug

abuse. LCJFS was granted temporary custody of R.F., Jr. via shelter care on

September 13, 2011. The trial court further issued orders on November 15, 2011,

following a hearing, adjudicating R.F., Jr. as a dependent child and maintaining

temporary custody with LCJFS.

{¶3}. On April 2, 2012, LCJFS filed a motion for permanent custody. A

magistrate's hearing on the permanent custody motion was scheduled for June 5, 2012.

After hearing the evidence, the magistrate took the matter under advisement, but

additionally orally suspended appellant's visitation with R.F., Jr. based on appellant's

attempt to abscond with the child during a supervised visit on June 4, 2012. See Tr. at

75-82, 174.

{¶4}. The magistrate issued a decision on June 13, 2012, recommending

permanent custody of R.F., Jr. to LCJFS.

1 {¶1}. R.F., Sr. has not appealed the permanent custody ruling at issue. Licking County, Case No. 13 CA 95 3

{¶5}. Appellant filed objections to the decision of the magistrate on June 22,

2012. Following the preparation of a transcript, appellant filed supplemental objections

to the magistrate's decision on August 8, 2012.

{¶6}. On February 20, 2013, while the objections were pending, appellant filed a

motion to reinstate visitation. Said motion was overruled following a review hearing on

March 7, 2013.

{¶7}. On October 1, 2013, more than a year after appellant's objections, the trial

court issued a decision approving the decision of the magistrate to grant permanent

custody of R.F., Jr. to the agency.

{¶8}. On October 23, 2013, appellant filed a notice of appeal. She herein raises

the following two Assignments of Error:

{¶9}. “I. APPELLANT WAS PREJUDICED BY THE INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.

{¶10}. “II. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT

CONSIDERING APPELLANT'S USE OF PROFESSIONAL RESOURCES TO REMEDY

THE CONDITIONS THAT LEAD (SIC) TO REMOVAL PURSUANT TO R.C. §

2151.414(E)(1).”

I.

{¶11}. In her First Assignment of Error, appellant maintains she did not receive

the effective assistance of counsel during the trial court proceedings. We disagree.

{¶12}. The two-part test for ineffective assistance of counsel used in criminal

cases, set forth in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674, applies in actions by the state seeking permanent termination of Licking County, Case No. 13 CA 95 4

parental rights. See Jones v. Lucas Cty. Children Services Bd. (1988), 46 Ohio App.3d

85, 86, 546 N.E.2d 471. A claim for 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. Strickland, supra; State v.

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

{¶13}. In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley at 142. Because of the difficulties inherent in determining whether

effective assistance of counsel was rendered in any given case, a strong presumption

exists that counsel's conduct fell within the wide range of reasonable professional

assistance. Id.

{¶14}. In order to warrant a reversal, the appellant must additionally show she

was prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel.” State v. Carter, 72 Ohio St.3d 545, 558, 1995–Ohio–104, citing Lockhart v.

Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180.

{¶15}. The crux of appellant's claim of ineffective assistance goes to her trial

counsel's purported failure to file a writ of procedendo during the time the permanent

custody motion was pending, which was well in excess of the two-hundred-day time

period directed in R.C. 2151.414(A)(2). Appellant directs us to In re Davis, 84 Ohio Licking County, Case No. 13 CA 95 5

St.3d 520, 705 N.E.2d 1219, 1999-Ohio-419, for the proposition that claimed violations

of such time requirements in permanent custody cases are properly remedied by filing a

complaint for a writ of procedendo.

{¶16}. However, it is well-established that a reviewing court need not determine

whether counsel's performance was deficient before examining the prejudice suffered

by the appellant as a result of the alleged deficiencies. See Bradley at 143, quoting

Strickland at 697. Furthermore, "[a] defendant must demonstrate actual prejudice, and

speculation regarding the prejudicial effects of counsel's performance will not establish

ineffective assistance of counsel." State v. Halsell, 9th Dist. Summit No. 24464, 2009-

Ohio-4166, ¶ 30, citing State v. Downing, 9th Dist. Summit No. 22012, 2004–Ohio–

5952, ¶ 27. In the case sub judice, the record reveals appellant tested positive for drugs

several times, including once for cocaine, once for opiates, and twice for marijuana,

after the agency obtained temporary custody of the child. She also failed to maintain

mental health counseling, did not obtain stable independent housing, had no income

and lost her eligibility for cash assistance, leading to the guardian ad litem's summary

statement to the trial court that appellant had made "no progress whatsoever" on her

case plan services. See Tr. at 173.

{¶17}. Under such circumstances, appellant fails to persuade us that the

outcome of permanent custody to LCJFS under the circumstances presented would

have been altered had her trial counsel, via a writ of procedendo, compelled the

issuance of the final decision any sooner following her objections to the magistrate's

decision. We therefore find no demonstration of ineffective assistance on the part of

appellant's trial counsel. Licking County, Case No. 13 CA 95 6

{¶18}. Accordingly, appellant’s First Assignment of Error is overruled.

II.

{¶19}. In her Second Assignment of Error, appellant contends the trial court

abused its discretion by allegedly not considering appellant's use of professional

resources to remedy the conditions that led to removal of the child. We disagree.

{¶20}. R.C. 2151.414(B)(1) reads as follows: “Except as provided in division

(B)(2) of this section, the court may grant permanent custody of a child to a movant if

the court determines at the hearing held pursuant to division (A) of this section, by clear

and convincing evidence, that it is in the best interest of the child to grant permanent

custody of the child to the agency that filed the motion for permanent custody and that

any of the following apply:

{¶21}. “(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,

* * * 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.

{¶22}. “(b) The child is abandoned.

{¶23}. “(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

{¶24}. “(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 * * *.” Licking County, Case No. 13 CA 95 7

{¶25}. 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 (see R.C.

2151.414(B)(1)(a), supra), a trial court is to consider the existence of one or more

factors under R.C. 2151.414(E), including whether or not “[f]ollowing 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 the purpose of changing parental conduct to

allow them to resume and maintain parental duties.” See R.C. 2151.414(E)(1)

(emphasis added).

{¶26}. The gist of appellant's argument is that the trial court failed to properly

weigh her limited attempts to utilize various services to deal with the serious issues in

her life against the span of just seven months she had available to her (representing the

time between the disposition and adoption of the case plan on November 15, 2011 and

the magistrate's decision of June 13, 2012).

{¶27}. However, as this Court has frequently recited, 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 Licking County, Case No. 13 CA 95 8

have on the lives of the parties concerned.” In re Mauzy Children (Nov. 13, 2000), Stark

App.No. 2000CA00244, quoting In re Awkal (1994), 95 Ohio App.3d 309, 316, 642

N.E.2d 424. In light of appellant's ineffectual progress in this matter, we concur with the

agency's assertion that it should not be required to have R.F., Jr. wait out a lengthier

time period before moving toward a permanency goal in the child's best interest. We

find the trial court's decision in this regard did not constitute an abuse of discretion.

{¶28}. Appellant's Second Assignment of Error is overruled.

{¶29}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Licking County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

JWW/d 0214 Licking County, Case No. 13 CA 95 9