2018 Ohio 1052
Ohio Ct. App.2018Background
- A.J., Jr., born 2000 with cerebral palsy and IQ of 40, requires ongoing medical, therapy, and special educational services.
- Child adjudicated dependent in 2001; MCCS developed case plans for parents; child later lived with paternal grandmother and relatives; father never had custody.
- Father (A.J. Sr.) moved to Indiana and has periods of incarceration since 2010 for violent offenses; limited contact with the child and no formal visitation requests for many years.
- In 2015 A.J. was hospitalized for malnourishment and bruising; custody shifted to relatives then foster care; MCCS sought permanent custody in October 2016.
- Hearing set for January 5, 2017; father (incarcerated) requested a 5–6 month continuance by letter the day before; trial court denied continuance, proceeded, and awarded MCCS permanent custody; mother voluntarily relinquished rights.
- Trial court found statutory factors (including abandonment, incarceration, repeated incarceration, and child’s special needs) supported finding child could not/should not be placed with father and that permanent custody was in child’s best interest.
Issues
| Issue | Father’s Argument | MCCS’s Argument | Held |
|---|---|---|---|
| Whether permanent custody award is supported by clear and convincing evidence | Record does not show child couldn’t be placed with Father within a reasonable time | Father abandoned child, failed case-plan obligations, incarcerated with release beyond 18 months, child’s needs met in foster placement | Court affirmed permanent custody: clear and convincing evidence supports award |
| Denial of continuance of permanency hearing | Requested ~5–6 month continuance because he might get work release in mid‑2017 | Request filed one day before hearing; no competent evidence of early release; inconvenience and uncertainty weigh against delay | Denial was not an abuse of discretion |
| Alleged ineffective assistance of counsel for late continuance motion and not securing father's participation | Counsel failed to timely move and failed to procure attendance/participation | Even if performance deficient, no prejudice shown; father’s attendance would not likely change outcome | Claim rejected for lack of prejudice under Strickland standard |
| Whether statutory abandonment/placement factors apply | Father disputes findings of abandonment and other E factors | Evidence of long absence, failure to seek visitation, repeated incarceration, and failure to remedy conditions | Court found R.C. 2151.414(E) factors (including abandonment, incarceration, repeated incarceration, and child’s special needs) applied |
Key Cases Cited
- In re Dylan C., 121 Ohio App.3d 115 (6th Dist. 1997) (defines clear and convincing standard and appellate review for custody findings)
- State v. Unger, 67 Ohio St.2d 65 (1981) (standards for reviewing a trial court's denial of a continuance)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard defined)
- In re Heston, 129 Ohio App.3d 825 (1st Dist. 1998) (right to counsel includes effective assistance in termination proceedings)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance of counsel)