[Cite as In re S.A., 2014-Ohio-3063.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: : Appellate Case Nos. 25994 : Appellate Case Nos. 26001 S.A., T.M. and S.A. : : Trial Court Case Nos. JC 2009-10601 : Trial Court Case Nos. JC 2011-728 : Trial Court Case Nos. JC 2012-913 : : (Juvenile Appeal from Montgomery : (County Juvenile Court) : ...........
OPINION
Rendered on the 11th day of July, 2014.
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MATHIAS H. HECK, JR., by TIFFANY C. ALLEN, Atty. Reg. #0089369, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
ROBERT L. SCOTT, Atty. Reg. #0086785, 8801 North Main Street, Suite 200, Dayton, Ohio 45415 Attorney for Appellant, E.M.
JAMES C. STATON, Atty. Reg. #0068686, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Appellant, T.A.
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FAIN, J. [Cite as In re S.A., 2014-Ohio-3063.] {¶ 1} E.M. (Mother) and T.A. (Father) appeal from an order of the Montgomery
County Court of Common Pleas, Juvenile Division, awarding permanent custody of their
children, S.A., T.M. and S.A. to Montgomery County Children’s Services (MCCS). 1
Mother contends that the Juvenile Court erred in finding that the children cannot be placed
with her within a reasonable time, that she was denied the effective assistance of counsel,
and that the court erred in the admission of evidence of her sexual relationship with her own
father. Father contends that the order is not supported by the evidence.
{¶ 2} We conclude that the court did not abuse its discretion in determining that the
probative value of the admission of the evidence at issue outweighed its prejudicial effect.
We further conclude that there is sufficient evidence upon which the court could rely in
finding that the children could not be placed with their parents within a reasonable time and
in finding that an award of permanent custody to MCCS is in the best interest of the
children. Accordingly, the order of permanent custody is Affirmed.
I. The Situation of the Family
{¶ 3} Mother and Father are the natural parents of S.A.-1, born November 21, 2009,
T.M, born January 27, 2011, and S.A.-2, born February 6, 2012. S.A.-1 has vision issues
including lazy eye and farsightedness for which she receives treatment. T.M. is
developmentally delayed and receives physical, occupational and speech therapy for his
condition. S.A.-2 has significant medical problems including macroencephaly and heart
blockage.
1 For ease of reference, wWe will refer to the two children with identical initials as S.A.-1 and S.A.- 2. [Cite as In re S.A., 2014-Ohio-3063.]
{¶ 4} MCCS established a case plan for the parents as early as April 2010. The
plan was discussed with the parents on numerous occasions, and the parents admit that they
were aware of the plan’s requirements. The case plan required the parents to maintain
stable housing and income; complete a parenting and psychological assessment and comply
with any treatment recommendations; complete a visitation assessment and parenting
classes; maintain regular visitation and attend the children’s medical appointments; and
engage in counseling.
{¶ 5} Psychological examination and testing by Richard Bromberg, a clinical
psychologist, revealed that both parents have significant cognitive impairment. Father reads
at a fourth-grade level with a low average intellect, while Mother reads at a second-grade
level and has a below average intellectual functioning, with difficulty in memory,
concentrating, thinking, and decision-making. Both parents also have mental health issues.
Father has bi-polar personality disorder, with violent, aggressive, antisocial, physical abuse,
and substance abuse traits. His testing indicated that he has a dysfunctional method of
parenting and a high likelihood of committing child abuse. Mother suffers from anxiety,
and exhibits “almost delusional” paranoid ideation. Tr. p. 75. She also exhibits traits
indicating a substantial likelihood of committing child abuse. Both parents were abused as
children. Bromberg opined that Father’s view of parenting as a great stressor indicated that
he would have difficulty in parenting and that he would need to engage in ongoing parenting
education. Bromberg opined that Mother was not capable of independently parenting the
children. “Aggressive” treatment, including medication, was recommended for Father for a
minimum of one year. Id. at 64. Bromberg recommended that Mother receive intensive 4
weekly group and individual counseling for at least twelve months, but noted that her need
for treatment would be lifelong. He also recommended that she be evaluated by a
psychiatrist for the administration of medication.
{¶ 6} Father did not engage in any treatment after Bromberg’s examination.
Althoiugh Mother had been engaged in counseling for several years, her psychological and
cognitive impairment did not improve, and she did not comply with recommendations for
obtaining medications.
{¶ 7} Psychologist, Gordon Harris, also evaluated both parents, and testified on
their behalf at the disposition hearing. Harris acknowledged that Mother was not capable of
independently parenting the children. He opined that he did not observe any “significant
psychopathologies” in Father, but did note that Father demonstrates “unrealistic perceptions”
that sometimes cause him to reach “erroneous conclusions.” Id. at 470. Harris testified
that during the family session the children and Father appeared bonded and that Father’s
“interactions with the children were fairly appropriate.” Id. at 469. However, he stated
that he felt that Father was “putting on a display” to “look like a good parent.” Id. Harris
testified that Father does have the capacity to make reasonable decisions. But Harris
admitted that in order to parent the children, Father would need help from a support system,
as well as ongoing counseling. Harris stated that Father would require “substantial
assistance to meet the needs of [the two children with serious medical needs].” Id. at 486.
{¶ 8} The parents did not have housing at the time of S.A.-1's birth. They
subsequently obtained housing, but caseworkers found animal feces throughout the kitchen,
and an infestation of bed bugs. The parents moved from that home into a residence on 5
Wyoming Avenue, where they were living at the time of the hearings. According to
caseworkers, the home was cleaner. However, there was evidence that the Wyoming
Avenue home was infested with bedbugs. The parents receive about $1,000 per month in
Social Security Disability, and Father brings in an unknown amount of income from various
jobs. They still have issues with meeting their rent and utility payments. The home had no
heat at the time S.A.-2 was born in February.
{¶ 9} There is also evidence that Father permitted numerous individuals to reside
in the home. Mother described one individual as homeless. Father’s brother, a sexually
oriented offender, was also observed in the home during two home visits by the caseworker
and Guardian Ad Litem, despite the fact that the parents knew he was not to be in the home.
Father admitted that his brother stayed in the home for fourteen days following an injury in
2011. The children were present during that time. The agency, which had just begun trial
visitations in the home, stopped the home visitations and returned visitations to the agency
premises. Thereafter, Father obtained a temporary restraining order against his brother, but
the order expired prior to the final hearing. The agency workers also addressed the need to
exclude other individuals from living in the home. This issue was not resolved at the time
of the hearing.
II. The Course of Proceedings
{¶ 10} MCCS became involved with the family upon S.A.-1's birth, because the
parents lacked stable housing and had mental health issues. T.M. and S.A.-2 were each
taken into custody by MCCS from birth. All three children were eventually adjudicated 6
dependent. MCCS moved for permanent custody in 2011 with regard to S.A.-1 and T.M.,
and in 2012 with regard to S.A.-2. A dispositional hearing was held on several dates in
June, August and September of 2012.
{¶ 11} Following the hearing, the magistrate entered a decision, dated November
2, 2012, awarding permanent custody of all three children to MCCS. Both Mother and
Father filed objections, separately, which were overruled by the Juvenile Court on October
18, 2013. Mother and Father have filed separate appeals which were consolidated by order
of this court dated January 17, 2014.
III. There Is Sufficient Evidence in the Record to Support the Award
of Permanent Custody to Montgomery County Children’s Services
{¶ 12} In Mother’s First Assignment of Error and Father’s sole assignment of error
they each contend that the evidence in the record does not support the award of permanent
custody to MCCS:
THE TRIAL COURT’S FINDING [MOTHER’S] CHILDREN
CANNOT BE PLACED WITH HER WITHIN A REASONABLE TIME IS
NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
THE TRIAL COURT ERRED TO [FATHER’S] PREJUDICE
WHEN IT GRANTED PERMANENT CUSTODY.
{¶ 13} Mother contends that the finding that the children cannot be placed with her
within a reasonable time is not supported by the record. In support, she argues that she had
“established a safe, appropriate household,” had engaged in counseling, and had attended all 7
visitation sessions. Father contends that the evidence supports a finding that reunification
within a reasonable time is possible, and that reunification is in the best interest of the
children.
{¶ 14} R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute requires
the court to find, by clear and convincing evidence, that: (1) granting permanent custody of
the child to the agency is in the best interest of the child; and (2) either the child (a) cannot
be placed with either parent within a reasonable period of time or should not be placed with
either parent if any one of the factors in R.C. 2151.414(E) are present; or (d) has been in the
temporary custody of one or more public or private children services agencies for twelve or
more months of a consecutive twenty-two month period. R.C. 2151.414(B)(1); In re S.J., 2d
Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga
No. 98545, 2012-Ohio-6010, ¶ 8.
{¶ 15} The statutory best-interest factors include, but are not limited to: (1) the
interaction and interrelationship of the child with the child's parents, relatives, foster parents
and any other person who may significantly affect the child; (2) the wishes of the child; (3)
the custodial history of the child; and (4) 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. R.C. 2151.414(D)(1).
{¶ 16} When determining whether a child can be placed with his natural parents
within a reasonable time, the trial court must look to R.C. 2151.414(E), which provides a list
of factors to consider. If the trial court finds from all relevant evidence that one or more of
these factors exist, it then must consider whether permanent commitment is in the best 8
interest of the child. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996). These
factors include:
(1) Following 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.
(2) Chronic mental illness, chronic emotional illness, mental
retardation, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate permanent
home for the child at the present time and, as anticipated, within one year
after the court holds the hearing pursuant to division (A) of this section or for
the purposes of division (A)(4) of section 2151.353 of the Revised Code;
***
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child 9
when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child;
(11) The parent has had parental rights involuntarily terminated with
respect to a sibling of the child pursuant to this section or section 2151.353 or
2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent to
those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
R.C. 2151.414(E).
{¶ 17} A trial court's decision on termination “will not be overturned as against the
manifest weight of the evidence if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established.” (Citations omitted.) In
re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. “[I]ssues relating to the
credibility of witnesses and the weight to be given the evidence are primarily for the trier of
fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22. The “rationale of
giving deference to the findings of the trial court rests with the knowledge that the trial judge
is best able to view the witnesses and observe their demeanor, gestures and voice inflections,
and use these observations in weighing the credibility of the proffered testimony.” Seasons 10
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J .Y., 2d
Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.
{¶ 18} The magistrate found that the parents had not completed their case plan
objectives, and had thereby failed to remedy the issues that caused the removal of the
children. Specifically, the magistrate found that Father had failed to comply with
treatment recommendations, and that although Mother had engaged in counseling, she had
not progressed. Father argues that the testimony of Dr. Harris indicates that he is capable of
parenting, and that it should have been afforded greater weight. The magistrate found the
testimony of Dr. Bromberg, the clinical psychologist who tested and examined both parents
regarding their cognitive limitations and mental health issues “very credible,” and
specifically found that Dr. Bromberg’s assessment was “more thorough and complete” than
that of Dr. Harris.
{¶ 19} The magistrate further found that Father’s propensity to permit numerous
individuals to stay in the residence, including his brother, and Mother’s failure to stop this
behavior, demonstrates that the parents’ housing situation is not stable. While Father denies
permitting others in the home, he did admit that his brother and another man stayed at the
home at different times. Father admitted that, despite being aware of the need to keep his
brother away from the children, he permitted his brother to live with him for fourteen days,
while he had home visitation with the children. Father did obtain a temporary protective
order restraining the brother from coming to the house, but that was after visitations were
returned to agency premises. Furthermore, the restraining order had expired by the time of
the hearing, and Father did not indicate an intent to seek another order. There is also
evidence in the record that Father indicated to agency workers that he disagreed with the
agency’s view that there was a need to keep his brother away from his children. 11
{¶ 20} The magistrate noted that neither parent had complied with the requirement
that they attend medical appointments with the children. As the magistrate stated, the
parents “need to fully comprehend the serousness of the medical issues and the appropriate
treatments for T.M. and S.A.-2.” The record supports a finding that while the parents were
aware of the appointments, they failed to attend the majority of appointments.
{¶ 21} There is also evidence in the record upon which the trial court could rely in
finding that Father and Mother do not have any support system or persons who would be
capable of helping them parent the children. Father insists that his mother could help them
with parenting. But there was evidence that Father was abused as a child, rendering his
mother unsuitable. Father noted that his ex-girlfriend could help. When it was noted that
the girlfriend had a disability, Father then stated that the girlfriend’s daughter and sister
could help her. Finally, Father argued that his brother’s daughter could aid them in
parenting. But the daughter, who is eighteen, resides with the sexual offender brother, and
she has a significant physical disability. We conclude that there is no error in the trial
court’s conclusion that the parents do not have a support system to help them parent.
Significantly, both parents refused to take additional parenting classes, despite Dr.
Bromberg’s recommendations, and the testimony of the agency workers that the parents did
not exhibit any progress from the prior parenting class.
{¶ 22} We conclude that there is evidence in this record to support the trial court’s
finding that the parents failed to complete their case plan and remedy the issues related to
removal. There is also evidence in the record that the agency did make available to the
parents services aimed at helping them meet the case plan goals. MCCS provided referrals
to counseling, parenting classes and psychological assessments. The agency also provided 12
transportation, and monitored three-hour visits two days per week. The agency attempted to
transition to in-home visits, but the discovery that Father’s brother was permitted to live in
the house caused the home visitation to be revoked.
{¶ 23} There is also evidence in the record to support the trial court’s finding that
the parents have significant chronic psychological impairments, which they have not
addressed. There is unrebutted evidence that Mother is not capable of independently caring
for the children. There is also evidence that Father is currently unable to meet the daily
needs of the children, and would need to undergo at least one year of aggressive treatment
and develop a strong support system before he would be able to parent.
{¶ 24} There is also evidence upon which the trial court could rely in finding that
Father has displayed a lack of commitment toward the children by failing to regularly visit,
by sleeping during numerous visits, and by failing to attend the children’s medical
appointments.
{¶ 25} We conclude that the record includes ample evidence to support the trial
court’s finding that the children cannot be returned to either parent within a reasonable time,
due to the parents’ lack of compliance with the case plan, but also due to their mental
impairments.
{¶ 26} The evidence in the record also supports a finding that awarding
permanent custody to MCCS is in the best interest of the children. It is clear from this
record that the parents love their children, and are bonded to them. But it is also clear from
the record the parents lack basic knowledge of the age-appropriate development for the
children, and that they were unable to utilize the education they received in their first
parenting class. The children have not lived with the parents, having been placed in foster 13
care from birth.
{¶ 27} S.A.-1 and T.M. have been in the custody of their foster parents for their
entire lives; they are very bonded and integrated with that family. The foster mother takes
care of the children’s special and medical needs. The children have done well in this home.
S.A.-2 lives with another family and is bonded with that family. Both families have a good
relationship and the three children are able to bond with one another. The foster parents of
S.A.-1 and T.M. intend to adopt them, and are considering adoption of S.A.-2.
{¶ 28} The court found that the children are too young to express their wishes
regarding custody. The Guardian Ad Litem testified that she recommends awarding
permanent custody to MCCS.
{¶ 29} As noted above, the children have never lived with their parents. S.A.-1 has
been in the custody of MCCS for more than twelve months. There is evidence that the
parents cannot independently meet the needs of the children, and that they have no relatives
or friends who can aid them in parenting. There is also evidence that the parents have failed
to remedy the issues surrounding their housing and their mental health. The trial court did
not err in concluding that the need for legally secure placement cannot be met by the parents.
{¶ 30} Based upon the record before us, we conclude that the order awarding
permanent custody of the children to MCCS is supported by clear and convincing evidence.
Accordingly, Mother’s First Assignment of Error and Father’s sole assignment of error are
overruled.
IV. Trial Counsel Was Not Ineffective for Having Failed to Object
to Evidence of Mother’s Sexual Relationship with her Father; 14
the Probative Value of this Evidence Outweighs its Prejudicial Effect
{¶ 31} Mother asserts the following as her Second Assignment of Error:
DEFENDANT WAS DEPRIVED OF HER RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT
TO TESTIMONY ABOUT HER CONSENSUAL SEXUAL
RELATIONSHIP WITH HER FATHER.
{¶ 32} Mother contends that references made to her sexual relationship with her
father were prejudicial. Specifically, Dr. Bromberg testified that Mother informed him that
her own father was the biological father of one of her older children. 2 Also, Mother
informed an agency employee that she did not view as inappropriate her sexual relationship
with her father. Mother contends trial counsel’s failure to object to the admission of this
evidence constitutes ineffective assistance of counsel.
{¶ 33} In termination proceedings, parents are entitled to counsel. R.C. 2151.352;
Juv.R. 4. This right includes the right to the effective assistance of trial counsel. In re
Wingo, 143 Ohio App.3d 652, 666, 758 N.E.2d 780 (4th Dist. 2001). The test for
ineffective assistance of counsel used in criminal cases is equally applicable to actions
seeking the permanent, involuntary termination of parental custody. In re T.P., 2d Dist.
Montgomery No. 20604, 2004-Ohio-5835, ¶ 45.
{¶ 34} To obtain reversal on a claim of ineffective assistance of counsel, an
appellant must demonstrate both deficient performance and resulting prejudice. Strickland
2 The record shows that Mother had previously had her rights terminated regarding two older children. 15
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency,
the appellant must show that counsel's representation fell below an objective standard of
reasonableness. Id. Trial counsel is entitled to a strong presumption that his or her conduct
falls within the wide range of effective assistance. Id. The adequacy of counsel's
performance must be viewed in light of all of the circumstances surrounding the trial court
proceedings. Id. Hindsight may not be allowed to distort the assessment of what was
reasonable in light of counsel's perspective at the time. State v. Cook, 65 Ohio St.3d 516,
524, 605 N.E.2d 70 (1992). With this standard in mind, we turn first to the issue of whether
the evidence should have been admitted; i.e., would an objection likely have been sustained.
{¶ 35} Evid.R. 403(A) provides: “Although relevant, evidence is not admissible if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or of misleading the jury.” This rule “manifests a definite bias in favor of the
admission of relevant evidence, as the dangers associated with the potentially inflammatory
nature of the evidence must substantially outweigh its probative value before the court
should reject its admission.” State v. White, 4th Dist. Scioto No. 03CA 2926,
2004-Ohio-6005, ¶ 50. Thus, “[w]hen determining whether the relevance of evidence is
outweighed by its prejudicial effects, the evidence is viewed in a light most favorable to the
proponent, maximizing its probative value and minimizing any prejudicial effect to the party
opposing admission.” State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 22.
In addition, trial courts have broad discretion in admitting evidence, and their decisions will
not be overturned absent an abuse of discretion and material prejudice to the defendant. State
v. Taylor, 2d Dist. Montgomery No. 20944, 2006-Ohio-843, ¶ 58, citing State v. Maurer, 15 16
Ohio St.3d 239, 264-265, 473 N.E.2d 768 (1984).
{¶ 36} The evidence in this case indicates that Mother has extreme mental
limitations, and cannot make appropriate decisions with regard to her children. There is
also evidence that she did nothing to prevent the children from coming into contact with
Father’s brother, whom she knows to be a sexually oriented offender, and that she does not
prevent other individuals from living in her home. The trial court could reasonably find that
the evidence of Mother’s sexual relationship with her father is probative evidence of her lack
of judgment. While this evidence may also have some undue prejudicial effect, we do not
find the undue prejudice outweighs its probative value. Significantly, the finder of fact in
this case was a judge, not a jury, and we presume that the judge could distinguish the
legitimate probative effect of this evidence from its scandalous nature. We conclude that an
objection to this evidence would likely have been overruled. Therefore, counsel was not
ineffective for having failed to object to its admission.
{¶ 37} Mother’s Second Assignment of Error is overruled.
V. Conclusion
{¶ 38} Both of Mother’s assignments of error, and Father’s sole assignment of error
having been overruled, the order of the Juvenile Court awarding permanent custody of the
children to Montgomery County Children’s Services is Affirmed.
DONOVAN and WELBAUM, JJ., concur. 17
Copies mailed to:
Mathias H. Heck Tiffany C. Allen Robert L. Scott James C. Staton Hon. Anthony Capizzi