[Cite as In re Z.S., 2010-Ohio-5038.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
IN THE MATTER OF: Z.S., : A Minor Child : : Case No: 10CA16 : : DECISION AND : JUDGMENT ENTRY : : File-stamped date: 10-4-10
APPEARANCES:
C. Michael Gleichauf, Ironton, Ohio, for Appellant.
J.B. Collier, Jr., Lawrence County Prosecutor, and Kevin Waldo, Lawrence County Assistant Prosecutor, Ironton, Ohio, for Appellant.
Kline, J.:
{¶1} Vivian Gamble, mother of Z.S., appeals the judgment of the juvenile court
awarding permanent custody of Z.S. to the Lawrence County Department of Job and
Family Services, Children Services Division (“Children Services”). Grady Smith, Z.S.’s
father, did not take part in this appeal and is presently incarcerated. On appeal,
Gamble contends that the trial court’s determination that the child be placed in the
permanent custody of Children Services was against the manifest weight of the
evidence. Because we find that the record contains competent, credible evidence
supporting the decision of the trial court, we disagree. Gamble also contends that her
attorney below provided ineffective assistance. Because Gamble failed to show that her Lawrence App. No. 10CA16 2
trial counsel’s performance was deficient and that the deficient performance prejudiced
her, we disagree. Accordingly, we affirm the judgment of the juvenile court.
I.
{¶2} On June 26, 2008, Children Services requested an ex parte order of custody
of Z.S. to remove him from his home because the child was alleged to be abused,
dependent, or neglected. The next day, the juvenile court granted Children Services
temporary custody of Z.S.
{¶3} Children Services filed a complaint in juvenile court that alleged Z.S. was an
abused, dependent, or neglected child. The complaint alleged that the “child’s mother
admits the use of non-prescribed pain pills, marijuana and use of crack cocaine and
ingesting several morphine pills during pregnancy. Said mother’s continued drug use
contributed to the premature birth of this child and medical records reveal that the
mother has serious drug issues. The father of the child has apparently done nothing to
protect the unborn child from the mother’s drug usage.”
{¶4} The case came to court for an adjudicatory hearing on July 3, 2008, and both
parents admitted to the charges. The trial court found that Z.S. was an abused,
neglected, and dependent child and entered an order in its journal instructing Children
Services to prepare a case plan for reunification.
{¶5} Children Services proposed a plan requiring Gamble to complete the
following objectives for potential reunification: 1) submit to a psychological examination;
2) attend and complete a drug or alcohol assessment by an approved service provider
and all recommended counseling treatments; 3) seek a domestic violence group to work
through domestic violence issues; 4) attend a parenting class in order to obtain the skills Lawrence App. No. 10CA16 3
needed to cope with a special needs child1; 5) sign the necessary releases so that
Children Services can obtain any necessary information from mental health agencies;
and 6) obtain appropriate housing and be able to provide items necessary for Z.S.’s
welfare (e.g., bedding, clothing, baby care supplies).
{¶6} On August 25, 2008, the court accepted the case plan and incorporated it into
the court’s dispositional order. It is uncontested that Gamble did not make progress on
any of these objectives during the pendency of the case below. At least in part, this is
due to Gamble’s incarceration in Kentucky on drug charges. Gamble was incarcerated
on August 21, 2008, about two months after the filing of the complaint. Initially, Gamble
was eligible for parole in September of 2009, but she was not released until January 11,
2010, about two weeks prior to the permanency hearing.
{¶7} Children Services had filed a motion for permanent custody on August 18,
2009, during Gamble’s incarceration. The matter came to a hearing before the trial
court on January 26, 2010. The State presented two witnesses. First, Alyssa Anaya
testified that she was the case worker responsible for Z.S. for the first two months of the
present case. She also testified that the child’s father had an extensive criminal history
and that Z.S. had been placed in foster care because there was no relative available for
placement. Second, Ginger Baker testified that she was the case worker for the
remainder of the case. She testified that she received only three letters and a phone
call from Gamble over a period of a year and a half. Baker also testified that other
incarcerated individuals had successfully worked on their case plans in the past. And
1 The record reflects that Z.S. suffers from a medical condition known as Capillary Venous Lymphatic Malformation with Overgrowth, more commonly known as a “port wine stain.” This particular condition requires frequent medical examinations for potential tumors, has caused the entire left side of Z.S.’s body to be larger than his right side, and presents additional risks of internal bleeding as well as infection. Lawrence App. No. 10CA16 4
she concluded that, notwithstanding a previously granted continuance of the sunset
date of the plan, Gamble had failed to take any action on the plan objectives.
{¶8} In response, Gamble testified that while she was incarcerated in Kentucky,
she did not have any access to resources necessary to complete any plan objectives.
She also testified that she had attempted to call Children Services numerous times, but
that she had to call collect and Children Services did not accept the charges. And,
finally, that she hoped to shortly move out of the halfway house where she presently
lived and move in with a friend she had met in prison.
{¶9} Subsequent to the hearing, the guardian ad litem for Z.S. filed a report that
concluded “it is in Z.S.’s best interest that some permanency be achieved. The
mother’s plans for parole and case plan completion include too many unknown factors.
It is unknown whether her home placement with a fellow inmate will or even should be
approved. It is unknown how long it will take her to transfer her probation to Lawrence
County, Ohio. She is not financially independent, has made no educational or
vocational progress while incarcerated and has not begun counseling. It is unknown
whether she could successfully complete the case plan objectives even if given
additional time. Further, her plans are completely dependent on receiving help from
other people. Regardless of how well-intentioned [Gamble] may be, it is unknown
whether these people will come through for her.” Guardian ad Litem’s Report at 4-5.
Neither party objected to the report of the guardian ad litem.
{¶10} The trial court issued an order on February 24, 2010 that granted Children
Services’ motion for permanent custody. Gamble appeals and assigns the following
errors for our review: I. “THE TRIAL COURT ERRED IN ORDERING PERMANENT Lawrence App. No. 10CA16 5
CUSTODY TO THE LAWRENCE COUNTY DEPARTMENT OF JOB AND FAMILY
SERVICES, CHILDREN SERVICES DIVISION, AS SUCH WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.” And, II “APPELLANT WAS DENIED HER
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE PERMANENT
CUSTODY HEARING.”
II.
{¶11} Gamble first contends that the decision of the trial court was against the
manifest weight of the evidence.
{¶12} We note that a parent’s “interest in the care, custody, and control of [his or
her] children ‘is perhaps the oldest of the fundamental liberty interests[.]’” In re D.A.,
113 Ohio St.3d 88, 2007-Ohio-1105, at ¶8, citing Troxel v. Granville (2000), 530 U.S.
57, 65. Further, “[p]ermanent termination of parental rights has been described as ‘the
family law equivalent of the death penalty in a criminal case.’” In re D.A. at ¶10, quoting
In re Smith (1991), 77 Ohio App.3d 1, 16. As such, “parents ‘must be afforded every
procedural and substantive protection the law allows.’” In re D.A. at ¶10, quoting In re
Hayes (1997), 79 Ohio St.3d 46, 48. “‘[I]t is plain that the natural rights of a parent are
not absolute, but are always subject to the ultimate welfare of the child, which is the
polestar or controlling principle to be observed.’” In re Cunningham (1979), 59 Ohio
St.2d 100, 106, quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58.
{¶13} “A public or private child-placement agency may file a motion under R.C.
2151.413(A) to request permanent custody of a child after a court has committed the
child to the temporary custody of the agency pursuant to R.C. 2151.353(A)(2).” In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, at ¶22. Once an R.C. 2151.413(A) motion is Lawrence App. No. 10CA16 6
filed, the court must follow R.C. 2151.414. Id. “[T]he court shall schedule a hearing and
give notice of the filing of the motion and of the hearing[.]” R.C. 2151.414(A)(1).
{¶14} A trial court may grant the agency’s motion for permanent custody if it
determines by clear and convincing evidence that: (1) one of the four conditions outlined
in R.C. 2151.414(B)(1)(a)-(d) applies; and (2) it is in the child’s best interest. R.C.
2151.414(B)(1); In re McCain, Vinton App. No. 06CA654, 2007-Ohio-1429, at ¶13.
{¶15} Gamble contends that the trial court erred in making the required findings
because they are against the manifest weight of the evidence. An award of permanent
custody must be supported by clear and convincing evidence. In re Hiatt (1993), 86
Ohio App.3d 716, 725. The Supreme Court of Ohio 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. It does not mean
clear and unequivocal.” In re Estate of Haynes (1986), 25 Ohio St.3d 101, 104.
{¶16} We will not reverse the judgment of the trial court when some competent,
credible evidence supports the trial court’s findings. In re Marano, Athens App. No.
04CA30, 2004-Ohio-6826, at ¶12. As such, we must determine if competent, credible
evidence supports the trial court’s findings concerning R.C. 2151.414(B)(1) and the best
interest of the child.
{¶17} First we consider the required finding under R.C. 2151.414(B)(1). The record
demonstrates that Z.S. has been in the temporary custody of Children Services since
June 27, 2008. R.C. 2151.414(B)(1)(d) provides that the trial court may grant Lawrence App. No. 10CA16 7
permanent custody to a movant if “[t]he 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[.]” See, also, In re C.W., 104
Ohio St.3d 163, 2004-Ohio-6411, syllabus. Here, Gamble admitted on the stand she
spent sixteen and one half months in prison during the pendency of these proceedings.
Transcript at 95. During the entirety of this time, Z.S. was in the temporary custody of
Children Services. We find competent, credible evidence in the record to support the
trial court’s finding under R.C. 2151.414(B)(1)(d).
{¶18} Second, the trial court concluded that the best interest of the child supported
granting the motion for permanent custody. R.C. 2151.414(D) provides, in part, that the
trial court in determining the best interest of a child “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 for the maturity of the child; (c) The custodial history of the child, including
whether 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[;] * * * (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[.].”
{¶19} The first statutory best interest factor is the child’s relationship with his foster
caregivers and with his parents. Baker testified that Z.S. was doing well in his current Lawrence App. No. 10CA16 8
placement. Transcript at 82. The report of the guardian ad litem indicated that Z.S. had
“bonded” with his foster mother. Guardian ad Litem’s Report at 2. Due to Gamble’s
incarceration, she has spent very little time with Z.S. She has also had little or no
communication with him. As such, there was competent, credible evidence in the
record that this factor supported granting Children Services permanent custody.
{¶20} The second statutory best interest factor is the child’s wishes. The trial
court’s order did not consider this factor. Apparently, the trial court agreed with the
guardian ad litem that the child was too young to express a meaningful preference. See
Guardian ad Litem’s Report at 2. Gamble does not contest this finding and entered no
objection to the report of the guardian ad litem before the trial court. There was
competent, credible evidence in the record supporting the trial court’s decision to
disregard this factor.
{¶21} The third statutory best interest factor is the custodial history of the child. The
trial court expressly found that the child had spent at least twelve or more months of a
consecutive twenty two month period in the custody of Children Services. The docket of
the case supports this finding. There was competent, credible evidence in the record to
support the trial court’s finding that this factor supported granting permanent custody to
Children Services.
{¶22} The fourth statutory best interest factor is the child’s need for a permanent
placement. The guardian ad litem concluded that the child was in need of a permanent
placement. Guardian ad Litem’s Report at 4. Again, Gamble raised no objection to this
report. There was competent, credible evidence in the record to support the trial court’s
finding on this factor. Lawrence App. No. 10CA16 9
{¶23} Gamble does not really argue in her brief that the trial court could not have
found any of these statutory best interest factors. That is, she appears to accept that
the foster parents have a closer relationship with Z.S. than she does. She certainly
accepts that Z.S. has spent twelve or more months in the custody of Children Services.
And she also accepts that she has made no progress in compliance with the
reunification plan.
{¶24} Gamble does argue that she is not to blame for any of these issues. She
testified that it was impossible, or at least extremely difficult, for her to communicate
while she was imprisoned in Kentucky. She also noted that the Kentucky prison did not
offer any kind of substance abuse programs for her to enroll in. Finally, she notes that
Children Services knew that she would be incarcerated before they wrote the
reunification plan. Therefore, she argues that the fact she did not complete the
reunification plan should not be held against her.
{¶25} We note that Gamble’s argument misunderstands the nature of a trial court’s
decision in a permanency hearing. In this context, a trial court does not primarily
apportion guilt or find fault. Instead, the trial court focuses on the best interest of the
child. In Matter of Clark (Apr. 4, 1995), Harrison App. No. 461. Even should we agree
that Gamble is not at fault for failing to satisfy any of the conditions of the reunification
plan, nonetheless, the trial court may have held that the best interests of the child
required that the court grant Children Services’ motion for permanent custody.
{¶26} Significantly, the trial court concluded that Z.S. was in need of a secure
permanent placement. At the time of the permanency hearing, there is no question but
that Gamble was not capable of taking care of Z.S. She had no independent housing, Lawrence App. No. 10CA16 10
no job, and was on parole in a different state. As the guardian ad litem concluded,
“[f]urther, according to [Gamble’s] testimony, the earliest she can hope to be a free
person in Ohio is mid to late March, 2010, providing that everything goes as planned,
and then she would still have to complete all of the case plan requirements.” Guardian
ad Litem’s Report at 4. The trial court reasonably concluded that Z.S. needed some
permanent placement, and, as the trial court noted, the only possible placement at the
time of the hearing was with Children Services. And based on the foregoing, we find
that there was competent, credible evidence in the record to support the trial court’s
finding that the best interest of the child supported granting the motion for permanent
custody.
{¶27} Finally, there is competent, credible evidence in the record that supports the
trial court’s finding that the child could not be placed with either parent within a
reasonable period of time. We note that this finding was unnecessary. R.C.
2151.414(B)(1)(d), unlike R.C. 2151.414(B)(1)(a), does not require the court to make a
finding of whether the child can be placed with the child’s parents within a reasonable
period of time. Nonetheless, the trial court’s finding, while statutorily unnecessary,
influenced the court’s decision to grant Children Services’ motion. In the trial court’s
opinion, this finding goes hand in glove with the court’s conclusions regarding the child’s
need for permanent placement and the best interests of the child. In a sense, the trial
court concluded that the child was in need of a permanent placement, and the court
concluded that the only possible placement within the near future was with Children
Services. In context, the trial court’s finding that the child could not be placed with
either parent within a reasonable period of time is intertwined with its conclusion Lawrence App. No. 10CA16 11
regarding the child’s best interest. The gist being that the child was in need of a
permanent placement and the only available placement within a reasonable period of
time was with Children Services. This factor constitutes a permissible factor under R.C.
2151.414(D), which empowers a court to consider “all relevant factors” in determining a
child’s best interest.
{¶28} Under R.C. 2151.414(E)(1), a trial court may find that a child cannot be
placed with a parent within a reasonable time where “[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.”
{¶29} Again, Gamble largely agrees with the trial court’s facts but argues that her
failure to complete any stated objectives in the reunification plan is not her fault. Again,
even if we credit this argument, this misunderstands the nature of the proceeding. The
focus here is not on any fault or lack thereof of the parent. The question is whether the
child can be placed with either parent within a reasonable period of time. Here based
on Gamble’s testimony and the report of the guardian ad litem, we find that there was Lawrence App. No. 10CA16 12
some competent, credible evidence in the record to support the trial court’s conclusion
that the child could not be placed with either parent within a reasonable period of time.
{¶30} We have found competent, credible evidence in the record supporting the trial
court’s conclusions, and we therefore overrule Gamble’s first assignment of error.
III.
{¶31} In her second assignment of error, Gamble contends that she was denied the
effective assistance of counsel.
{¶32} The two part test for ineffective assistance of counsel in criminal cases, as
announced in Strickland v. Washington (1984), 466 U.S. 668, is equally applicable to
state actions for permanent custody. In re A.M., Adams App. No. 08CA862, 2008-Ohio-
4835, at ¶33 (internal citations omitted); In re King (Aug. 11, 1999), Adams App. No.
99CA671, citing Jones v. Lucas Cty. Children Services Bd. (1984), 46 Ohio App.3d 85,
86. “In Ohio, a properly licensed attorney is presumed competent and the appellant
bears the burden to establish counsel’s ineffectiveness.” State v. Wright, Washington
App. No. 00CA39, 2001-Ohio-2473, citing State v. Hamblin (1988), 37 Ohio St.3d 153,
155-56, cert. den. Hamblin v. Ohio (1988), 488 U.S. 975; Vaughn v. Maxwell (1965), 2
Ohio St.2d 299, 301. As this court has noted, the “benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Wright, citing Strickland at 685-86.
{¶33} The party alleging ineffective assistance of counsel must show two things: (1)
“that counsel’s performance was deficient[,]” which “requires showing that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the Lawrence App. No. 10CA16 13
defendant by the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced
the defense[,]” which “requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland at 687.
Unless both prongs are shown, it cannot be said that there was a “breakdown in the
adversary process that renders the result unreliable.” Id.
{¶34} Specifically, Gamble claims the following: “In the case at hand the attorney for
the Appellant presented the court with little evidence to counter the State’s contentions
for permanent custody. The only witness the attorney for the Appellant called was the
[A]ppellant. The attorney for the [A]ppellant introduce[d] two letters into evidence that
the [A]ppellant had written, but failed to introduce any additional evidence. Additionally
the Appellant’s trial counsel failed to challenge the [report of the guardian ad litem], or to
cross examine the [guardian ad litem] as to her findings.”
{¶35} However, when considering an appeal based on the ineffective assistance of
counsel, we “will not presume prejudice but will require an affirmative showing thereof.”
Matter of Shelton (Mar. 16, 1993), Highland App. No. 818. See, also, State v. Sanders,
92 Ohio St.3d 245, 273, 2001-Ohio-189 (“A reviewing court must strongly presume that
‘counsel’s conduct falls within the wide range of reasonable professional assistance[.]’”),
quoting Strickland at 689. In the present case, Gamble provides absolutely nothing
other than the bare speculation that her attorney could have, and should have, called
more witnesses and cross-examined the guardian ad litem. Gamble provides no
evidence that the outcome of the proceedings would have been different had Gamble’s
trial counsel called these unnamed witnesses or asked these unstated questions. As Lawrence App. No. 10CA16 14
such, she fails to carry her burden to demonstrate the prejudice prong of the Strickland
test.
{¶36} We therefore overrule Gamble’s second assignment of error.
IV.
{¶37} Having overruled both of Gamble’s assignments of error, we affirm the
judgment of the Lawrence County Common Pleas Court, Juvenile Division.
JUDGMENT AFFIRMED. Lawrence App. No. 10CA16 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.
For the Court
BY: Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.