[Cite as In re X.L., 2014-Ohio-1219.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: : JUDGES: TWIGGS/LUCE/WILLIAMS : PATTERSON CHILDREN : Hon. Sheila G. Farmer, P.J. X.L. : Hon. John W. Wise, J. C.W. : Hon. Patricia A. Delaney, J. L.W. : Z.T. : Case No. 2013CA00220 : : : : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2012 JCJ 00086
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 24, 2014
APPEARANCES:
For Appellee Stark County DJFS: For Appellant Mother:
JAMES B. PHILLIPS AARON KOVALCHIK STARK COUNTY JFS 116 Cleveland Ave. NW 221 Third St. SE Suite 808 Canton, OH 44702 Canton, OH 44702 Stark County, Case No. 2013CA00220 2
Delaney, J.
{¶1} Appellant P.P. (“Mother”) appeals from the October 11, 2013 Judgment
Entry of the Stark County Court of Common Pleas, Family Court Division. Appellee is
Stark County Department of Job and Family Services (“Agency”).
FACTS AND PROCEDURAL HISTORY
{¶2} This case involves four children of Mother: Z.T. (d.o.b. 11/10/2000), X.L.
(d.o.b. 1/27/04), C.W. (d.o.b. 11/2/0/05) and L.W. (d.o.b. 10/17/06). The father of Z.T. is
unknown; Christopher Williams (“Father”) is the established father of the three youngest
children only.
Case History
{¶3} This case arose when the Agency filed a complaint seeking temporary
custody of the four children named above, plus three additional children of Mother: G.P.,
K.P., and L.P. Permanent custody of the latter three children was awarded to the
Agency on May 29, 2013 after a contested trial, a decision we affirmed in In re G.P., 5th
Dist. Stark Nos. 2013CA00126, 2013CA00127, 2013-Ohio-4692.
{¶4} Relevant to the instant appeal, on February 14, 2012, the trial court found
Z.T. (d.o.b. 11/10/2000), X.L. (d.o.b. 1/27/04), C.W. (d.o.b. 11/2/0/05) and L.W. (d.o.b.
10/17/06) to be to be dependent and the children were placed in the Agency’s
temporary custody. A case plan was approved and adopted. Regular six-month and
annual reviews were held and the trial court found the Agency made reasonable efforts
to reunify the family.
{¶5} On June 14, 2013, the Agency filed a motion for permanent custody of
Z.T. (d.o.b. 11/10/2000). Stark County, Case No. 2013CA00220 3
{¶6} On June 17, 2013, the Agency filed a motion to extend temporary custody
of X.L. (d.o.b. 1/27/04), C.W. (d.o.b. 11/20/05), and L.W. (d.o.b. 10/17/06) which was
later amended to a motion to change legal custody to T.G., paternal grandmother in
Wisconsin, upon a six-month interstate home study.
{¶7} The motions for permanent custody and change of legal custody were
heard on October 10, 2013. Neither Mother nor Father appeared for the hearing.
{¶8} On October 11, 2013 the trial court journalized its findings of fact and
conclusions of law terminating Mother’s parental rights and granting permanent legal
custody of Z.T. (d.o.b. 11/10/2000) to the Agency and changing legal custody of X.L.
(d.o.b. 1/27/04), C.W. (d.o.b. 11/20/05), and L.W. (d.o.b. 10/17/06) to T.G.
The Evidence before the Trial Court
{¶9} The following facts are adduced from evidence at the motions hearing
before the trial court on October 10, 2013.
{¶10} Stacy Senff testified as the ongoing Agency caseworker for all four
children. The children were taken into emergency temporary custody on January 20,
2012 and were found to be dependent children on February 6, 2012. They have
remained in the temporary custody of the Agency since January 20, 2012 and the trial
court has conducted regular review hearings, finding the Agency has made reasonable
efforts to reunite the family and approving and adopting a case plan.
{¶11} The father of Z.T. (d.o.b. 11/10/2000) is unknown; no father has been
identified. John Doe service has been perfected.
{¶12} Father of X.L. (d.o.b. 1/27/04), C.W. (d.o.b. 11/20/05), and L.W. (d.o.b.
10/17/06) is located in Milwaukee, WI and has contact with the children; he agrees with Stark County, Case No. 2013CA00220 4
the motion to change legal custody of the three children to his mother, T.G., who lives in
Eau Claire, WI. Father has been released from jail and visits frequently. Senff testified
Father is not involved in case plan services because he agreed with his mother having
legal custody.
Mother has not Completed Case Plan
{¶13} Mother’s case plan services included an intake assessment and
substance abuse treatment at Quest, random urine screens, and a parenting
assessment at “Northeast Ohio.” Mother went to Quest for the assessment and denied
a history of substance abuse, although she tested positive for cocaine. She was told to
attend Quest for substance abuse counseling and she did so.
{¶14} Mother completed the parenting assessment at Northeast Ohio, receiving
several recommendations which were incorporated into her case plan. She was
required to complete anger management and domestic violence counseling at Free
Space, but she only attended a few times. She was required to complete Goodwill
Parenting, which she did not attend at all. Finally, she was required to receive a
comprehensive mental health assessment and psychological evaluation; a concern
existed with Mother’s bipolar condition. She contacted Phoenix Rising and attended a
few appointments, but didn’t sign releases so Senff was unable to ascertain compliance
with this requirement.
{¶15} The Agency was also concerned with Mother’s ongoing cocaine abuse.
Her last positive test was August 28, 2012; she did comply with random urine screens,
when Senff could reach her. Stark County, Case No. 2013CA00220 5
{¶16} Senff’s communication with Mother was intermittent. She sporadically
showed up for visits and her telephone numbers changed “constantly.” Senff’s last
contact with Mother was August 28, 2012, when she was scheduled for a visit with the
children. Because Mother had not been showing up, the Agency had not transported
the children for the visit. Senff and her supervisor met with Mother that day and
discussed their concerns.
{¶17} On cross-examination, Senff explained Mother had visitation for one hour
per week and the Agency had stopped visitation because Mother did not show at all for
three or four weeks and didn’t call to cancel, which was too traumatic for the children.
{¶18} Mother did not reappear until a court hearing in December or January of
2013 and did not maintain contact with Senff since the permanent custody hearing on
the other three children mentioned supra, on May 7, 2013. At that hearing, Mother
brought documentation of some substance abuse treatment she was receiving in
Wisconsin, but Senff was only able to verify Mother had missed two appointments, done
no follow-up, and had not provided a release.
{¶19} Mother’s last visit with the children was August 14, 2012. She did not
request a visit with the children at the permanent custody hearing on her other children
held on May 7, 2013.
{¶20} Senff does not believe Mother has done anything to reduce the risk she
poses to her children and cannot safely parent the children.
{¶21} Mother’s last known whereabouts were in Wisconsin. She had a baby in
Wisconsin in May, 2013 and as of the date of the hearing, has custody of the child.
Senff testified a case has been opened but the child has not been removed, despite no Stark County, Case No. 2013CA00220 6
indication Mother has completed services in Wisconsin. Senff testified at one point the
Wisconsin children’s services agency was unable to locate Mother and the child.
Z.T.’s Best Interests
{¶22} Z.T. (d.o.b. 11/10/2000) is a biracial child with no medical issues; he does
have some psychological and developmental issues, specifically, Reactive Attachment
Disorder. He has been in counseling for this but is taking a break. He is in a foster
home and doing “pretty well;” Senff testified grades are very important to him and he is
trying football for the first time. Senff stated Z.T. has told her how important stability is
to him; this is the first time he’s been in the same school for two years. At the time of
the hearing, Z.T. was 12 years old and in 7th grade. He is not presently in a foster-to-
adopt environment because the Agency did not have permanent custody.
{¶23} Z.T. wants a permanent home. He is presently dealing with issues related
to being abandoned in Ohio. He parented his younger siblings, and now they and his
mother are in Wisconsin. His last visit with Mother was August 14, 2012. Senff testified
the bond between Z.T. and Mother is present but is not healthy due to resentment
related to splitting up the siblings.
{¶24} Senff opined permanent custody is in Z.T.’s best interest and will allow
him to remain at the same school, finish the school year, have friendships, play sports,
and live the life of a 12-year-old instead of parenting younger children. Z.T. is very
adoptable and is a nice boy who craves a permanent home.
{¶25} The guardian ad litem agreed permanent custody is in Z.T’s best interest. Stark County, Case No. 2013CA00220 7
Best Interests of X.L., C.W., and L.W.
{¶26} Evidence regarding the change of legal custody of X.L. (d.o.b. 1/27/04),
C.W. (d.o.b. 11/20/05), and L.W. (d.o.b. 10/17/06) established the Agency requested an
interstate home study on the home of T.G., paternal grandmother. The three children
were placed there on October 24, 2012, and although they had a difficult transition, they
are now doing well with the aid of services including intensive home-based counseling
focusing on structure, rules, and consequences. The state of Wisconsin has approved
the change of legal custody to T.G. as well.
{¶27} Mother has not visited the children at T.G.’s residence in Eau Claire, WI
and the counselor does not recommend visits at this time. At one point during their time
in WI, C.W. (d.o.b. 11/20/05) and L.W. (d.o.b. 10/17/06) set fires and when
apprehended, they said they were burning the memories of the times Mother’s husband
hurt them and she didn’t protect them.
{¶28} Senff opined the change of legal custody is in the best interest of the three
younger children because they have been with T.G. for a year and have come a long
way. Father is a big part of their lives and an uncle is also involved so they have
positive male influences in their lives. The family has demonstrated commitment to
maintaining stability and maintaining the placement until the three children reach the
age of 18.
{¶29} The guardian ad litem also recommends granting the change of legal
custody of X.L., C.W., and L.W. Stark County, Case No. 2013CA00220 8
{¶30} The trial court terminated Mother’s parental rights and granted permanent
legal custody of Z.T. (d.o.b. 11/10/2000) to the Agency and changed legal custody of
X.L. (d.o.b. 1/27/04), C.W. (d.o.b. 11/20/05), and L.W. (d.o.b. 10/17/06) to T.G.
{¶31} Mother now appeals from the trial court’s October 11, 2013 decision
granting permanent custody of Z.T. to the Agency. Mother does not appeal the trial
court’s decision changing legal custody of the three younger children to T.G. Mother
raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶32} “I. APPELLANT WAS DENIED HER RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶33} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR
CHILD CANNOT OR SHOULD NOT BE PLACED WITH APPELLANT WITHIN A
REASONABLE TIME WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY
OF THE EVIDENCE.”
{¶34} “III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
ANALYSIS
I.
{¶35} In her first assignment of error, Mother argues she was deprived of the
effective assistance of counsel. We disagree. Stark County, Case No. 2013CA00220 9
{¶36} We have recognized “ineffective assistance” claims in permanent custody
appeals. See, e.g., In re Utt Children, 5th Dist. Stark No.2003CA00196, 2003–Ohio–
4576. Where the proceeding contemplates the loss of parents' ‘essential’ and ‘basic’
civil rights to raise their children, “ * * * the test for ineffective assistance of counsel used
in criminal cases is equally applicable to actions seeking to force the permanent,
involuntary termination of parental custody.” In re Wingo, 143 Ohio App.3d 652, 666,
758 N.E.2d 780 (4th Dist.2001), quoting In re Heston, 129 Ohio App.3d 825, 827, 719
N.E.2d 93 (1st Dist.1998). Our standard of review for an ineffective assistance claim is
thus set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). In re Fell, 5th Dist. Guernsey No. 05 CA 8, 2005–Ohio–5790, ¶ 11.
{¶37} To succeed on a claim of ineffectiveness, an appellant must satisfy a two-
prong test. Initially, an appellant must show that trial counsel acted incompetently. See,
Strickland v. Washington, supra, 466 U.S. at 668. In assessing such claims, “a court
must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158 (1955). “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in
the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted
“outside the wide range of professionally competent assistance.” Id. at 690.
{¶38} Even if an appellant shows that counsel was incompetent, the appellant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice” Stark County, Case No. 2013CA00220 10
prong, the appellant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The United States Supreme Court and the Ohio Supreme
Court have held a reviewing court “need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373
538 N.E.2d 373, quoting Strickland at 697. Accordingly, we will direct our attention to
the second prong of the Strickland test. In re Huffman, 5th Dist. Stark No.2005–CA–
00107, 2005–Ohio–4725, ¶ 22.
{¶39} First, Mother argues trial counsel was ineffective in failing to ask for a
continuance of the permanent custody hearing. We disagree. We are inclined to agree
with our colleagues on the Ninth District Court of Appeals, who concluded “the
reasonableness of trial counsel's performance must be examined in light of the
limitations that the [parent’s] own behavior placed on counsel's ability to represent [him
or her].” In re J.S., 9th Dist. Summit No. 10CA009908, 2011-Ohio-985, ¶ 17, citing In re
N.H., 9th Dist. Summit No. 24355, 2008–Ohio–6617, at ¶ 28, citing Strickland, 466 U.S.
at 691.
{¶40} As in J.S., supra, in the instant case, the totality of the circumstances and
the limitations Mother placed on trial counsel's performance do not support a conclusion
that trial counsel's performance fell below an objective standard of reasonable
representation in failing to move for a continuance of the permanent custody hearing.
The record reflects Mother was served with notice of the permanent custody hearing.
She did not complete her case plan or visit with Z.T. She did not stay in touch with Senff Stark County, Case No. 2013CA00220 11
or inform her of her whereabouts. There is no evidence in the record Mother asked her
attorney to request a continuance or provided a reason for her absence on the day of
the hearing. Mother has not demonstrated that trial counsel's performance fell below an
objective standard of reasonable representation in failing to request a continuance on
the day of the permanent custody hearing. See Bradley, supra, 42 Ohio St.3d 136 at
paragraph two of the syllabus.
{¶41} Moreover, Mother has not demonstrated prejudice; she has not shown
that the result would have been different had trial counsel requested a continuance.
Mother had not visited Z.T. in over 90 days and he was in the temporary custody of the
Agency for more than 12 of the last 22 months, either of which is sufficient grounds to
support the motion for permanent custody.
{¶42} Mother further argues trial counsel was ineffective in failing to present a
defense during the best-interest portion of the hearing because there was testimony
Mother was “bonded” with Z.T. We disagree with this characterization of the evidence
in the record; in fact, Senff testified the bond between Mother and Z.T. is not a positive
one in light of Mother’s abandonment and Z.T.’s realization thereof.
{¶43} We find Mother has not established trial counsel’s actions constituted
ineffective assistance and her first assignment of error is overruled.
II., III.
{¶44} Mother argues in her second and third assignments of error the trial court
erred in granting permanent custody of Z.T. to the Agency. We disagree.
{¶45} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 Stark County, Case No. 2013CA00220 12
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477. If some competent, credible evidence going to all the essential
elements of the case supports the trial court's judgment, an appellate court must affirm
the judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶46} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶47} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶48} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court Stark County, Case No. 2013CA00220 13
determines, by clear and convincing evidence, it is in the best interest of the child to
grant permanent custody to the agency, and that any of the following apply: (a) the child
is not abandoned or orphaned, 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; (b) the
child is abandoned; (c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or (d) the child has been in the temporary custody
of one or more public children services agencies or private child placement agencies for
twelve or more months of a consecutive twenty-two month period ending on or after
March 18, 1999.
{¶49} R.C. 2151.414(B) establishes a two-pronged analysis the trial court must
apply when ruling on a motion for permanent custody. In practice, a trial court will
usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶50} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child's parents, siblings, relatives, foster parents and out-of-home
providers, and any other person who may significantly affect the child; (2) the wishes of
the child as expressed directly by the child or through the child's guardian ad litem, with
due regard for the maturity 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. Stark County, Case No. 2013CA00220 14
{¶51} Our review of the record shows the trial court's decision regarding
permanency and placement was supported by clear and convincing evidence.
{¶52} Our review of the record fully supports the trial court’s conclusion Mother
abandoned her children, including Z.T., due to her lack of contact with them for more
than 90 days and her failure to successfully complete her case plan services. Mother
failed to maintain contact with Senff, failed to establish she completed required
counseling or obtained counseling in Wisconsin, and did not complete required releases
that would allow the Agency to determine whether she complied with any treatment
recommendations. In the absence of any such evidence, we are left to conclude the
Agency’s most serious concerns, Mother’s mental health and substance abuse, remain
unresolved.
{¶53} We also note Mother had her parental rights involuntarily terminated with
respect to three siblings of Z.T., a case which was on appeal at the time of the trial
court’s ruling. In the present case, we find clear and convincing evidence that,
notwithstanding the prior termination, Mother has not established she can provide a
legally secure placement and adequate care for the health, welfare, and safety of the
child. R.C. 2151.414(E)(11).
{¶54} We next turn to the issue of best interests. We have frequently noted,
“[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
have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark
No.2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio Stark County, Case No. 2013CA00220 15
App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994). The trial court determined it was in
the best interest of the child to be placed in the permanent custody of the Agency
pursuant to R.C. 2151.414(D), and we agree.
{¶55} Z.T. wants and deserves stability. The first stability he has experienced is
in his foster home, where he has been able to stay in the same school for longer than a
year and even participate in sports. He is experiencing life as a 12-year-old and not
having to parent younger siblings. Although he is not presently in a foster-to-adopt
environment, granting permanent custody to the Agency makes him eligible for such an
arrangement and would allow him to find the permanence and stability he craves. He is
a nice boy by all accounts and is adoptable.
{¶56} The guardian ad litem recommended that permanent custody be granted
to the Agency.
{¶57} Mother has not visited with Z.T. since August 14, 2012 and has not
requested a visit; she is apparently in Wisconsin. Z.T.’s realization and understanding
of her abandonment has not created a healthy bond between them. The trial court
found, and we agree, the benefits of permanency to Z.T. outweigh any detriment to
severing the bond between Z.T. and Mother.
{¶58} Mother's second and third assignments of error are overruled. Stark County, Case No. 2013CA00220 16
CONCLUSION
{¶59} Mother’s three assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Family Court Division is affirmed.
By: Delaney, J. and
Farmer, P.J.
Wise, J., concur.