In re Z.N.
Opinion
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
IN THE MATTER OF: : W. Scott Gwin, P.J.
: John W. Wise, J.
Z.N. : Julie A. Edwards, J.
:
: Case No. 11-CA-0015
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas, Juvenile Division, Case No. F2009-0814
JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 23, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ROBERT C. BANNERMAN, ESQ. Licking County Prosecutor P.O. Box 77466 Columbus, Ohio 43207-0098 BY: JAMES D. MILLER Assistant Prosecuting Attorney For Marcena Burnside 20 S. Second Street, Fourth Floor Newark, Ohio 43055 ROBIN LYN GREEN, ESQ.
33 West Main Street, Ste. 103 Guardian ad Litem Newark, Ohio 43055
RUTHELLEN WEAVER, ESQ. 542 South Drexel Avenue Bexley, Ohio 43209
Edwards, J.
{¶1} Appellant, Zakery Neldon, appeals a judgment of the Licking County Common Pleas Court, Juvenile Division, awarding permanent custody of his daughter Z.N. to appellee Licking County Department of Job and Family Services (LCDJFS).
STATEMENT OF FACTS AND CASE
{¶2} Z.N. was born on November 25, 2009. On the same date, Z.N. was placed into the emergency shelter care of appellee and has resided in the same foster home from the time she was released from the hospital. On February 8, 2010, Z.N. was found to be dependent and placed in the temporary custody of the agency. Appellee moved for permanent custody of Z.N. on October 18, 2010. The case proceeded to trial on December 20, 2010 before a magistrate in the Licking County Common Pleas Court.
{¶3} Marcena Burnside is the mother of Z.N. She has been minimally employed and virtually homeless, losing multiple jobs because of poor job performance. At the time of the permanent custody hearing, she was living with her sister. She struggled to meet Z.N.’s basic needs during visitation and had previously lost custody of her two older children.
{¶4} Appellant was incarcerated at the time of the hearing for assaulting a police officer. Although he did not have medical documentation, he claimed to have been diagnosed in the past as bipolar and schizophrenic. Following his conviction, he was expelled from a community-based correction facility and an in-patient treatment facility and thereafter ordered to serve his sentence in prison. He became incarcerated in September, 2010, and was due to be released in March, 2011. He testified that after
Licking County App. Case No. 11-CA-0015 3
his release he had a job and an apartment waiting for him and was prepared to take care of Z.N.
{¶5} The magistrate found that Z.N. should not be placed with appellant or her mother within a reasonable time, Z.N.’s need for a permanently secure placement could not be achieved without granting permanent custody to the agency and the parents failed continuously and repeatedly to remedy the conditions which existed at the time of Z.N.’s removal. The court found permanent custody to be in the best interest of Z.N. and awarded permanent custody to the appellee. Appellant failed to file objections to the magistrate’s report.
{¶6} Appellant assigns two errors on appeal:
{¶7} “I. APPELLANT RECEIVE [SIC] INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
{¶8} “II. THE MAGISTRATE’S DETERMINATION TO GRANT PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAIN ERROR.”
I
{¶9} In his first assignment of error, appellant argues counsel was ineffective for failing to file objections to the magistrate’s decision, thereby hampering his ability to appeal.
{¶10} A properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of ineffective assistance of counsel, appellant must show counsel's performance fell below an objective standard of reasonable representation and but for counsel’s error, the
Licking County App. Case No. 11-CA-0015 4 result of the proceedings would have been different. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136. In other words, appellant must show that counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id.
{¶11} Juv. R. 40(D)(3)(b)(iv) provides:
{¶12} “(iv) Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion whether or not specifically designated as a finding of fact or conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b).”
{¶13} Appellant has not demonstrated that had he filed objections to the magistrate’s report, the result of the proceeding would have been different. The evidence demonstrated that appellant had only seen Z.N. five times during her lifetime. He has been diagnosed with bipolar disorder and schizophrenia and prior to his incarceration did not take medication for his problems because he did not have insurance. He had a history of marijuana and drug use, and at one point told the caseworker he had a “God-given right” to smoke marijuana. He was incarcerated at the time of trial for assault on a police officer. He had been expelled from a community- based corrections facility due to conflicts with staff members, and was expelled from an in-patient substance abuse treatment facility when he walked away, causing his probation to be revoked and his prison sentence to be imposed.
{¶14} There was evidence that although appellant was never convicted of domestic violence, appellant and Z.N.’s mother had a history of violence between them. He threatened to kill the caseworker assigned to Z.N.’s case and threatened to have her fired, both face-to-face and by telephone. He left threatening messages on the caseworker’s voice mail. While everyone involved in the case agreed that appellant loved Z.N., the evidence was overwhelming that despite his testimony to the contrary, he was unable to care for her.
{¶15} The evidence further demonstrated that Z.N. had been in the same foster home from birth and the foster parents wanted to adopt her.
{¶16} Appellant has not demonstrated that had counsel filed objections to the magistrate’s report, the court would have denied the agency’s permanent custody motion. The first assignment of error is overruled.
II
{¶17} In his second assignment of error, appellant argues that the decision of the court finding permanent custody to be in Z.N.’s best interest is against the manifest weight of the evidence. As discussed in assignment of error one, counsel failed to file objections to the findings of the magistrate. We accordingly must find plain error in order to reverse. To demonstrate plain error, appellant must show that but for the error, the result of the proceeding would clearly have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, ¶ 2 of the syllabus. Notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id. at paragraph 3 of the syllabus.
Licking County App. Case No. 11-CA-0015 6
{¶18} A trial court's decision to grant permanent custody of a child must be supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear and convincing evidence” as “[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty, as required beyond a reasonable doubt, as in criminal cases.” Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118; In re: Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 N.E.2d 613.
Free access — add to your briefcase to read the full text and ask questions with AI
2011 Ohio 3221 (In re Z.N.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.