2015 Ohio 3790
Ohio Ct. App.2015Background
- Mother A.B. had two daughters, B.B. (born 2006) and S.H. (born 2011); both children were removed in December 2012 after allegations of the mother’s ongoing drug addiction and unstable caregiving.
- Greene County Children Services (GCCS) obtained emergency custody, the children were adjudicated dependent, and GCCS received temporary custody in January 2013.
- GCCS developed a reunification plan requiring assessments, random drug screens, and stable housing; A.B. completed some in-prison programs but repeatedly relapsed, absconded while on probation, and was subsequently incarcerated.
- The children were in GCCS custody for roughly two years and placed together with foster parents who wished to adopt; the guardian ad litem recommended permanent custody to GCCS.
- Trial court denied permanent custody at an August 2014 review but later granted GCCS’s December 2014 motion, terminating A.B.’s parental rights; A.B. appealed pro se and raised four assignments of error after appointed counsel filed an Anders brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Ineffective assistance of trial counsel for failing to object to testimony about prison programs and for not giving closing argument | GCCS: testimony about programs was proper and trial strategy decisions are within counsel’s discretion | A.B.: counsel should have objected to testimony discrediting her prison programs and should have given a closing argument | Court: no deficient performance; testimony did not discredit programs and waiving closing may be tactical; no prejudice shown |
| 2. Trial court abused discretion by discounting prison programs A.B. completed | GCCS: court properly considered programs but reasonably required community-based follow-up given relapse history | A.B.: court improperly disregarded validity/accreditation of prison programs | Court: did not discredit programs; found them less rigorous than community programs and reasonably required post-release compliance; no abuse of discretion |
| 3. Fathers not properly served, depriving court of jurisdiction / prejudicing outcome | A.B.: notice by posting failed to provide fathers proper service, affecting custody outcome | GCCS: fathers were posted per statute after attempts to locate; fathers had abandoned the children and could not care for them | Court: service by posting was used and not objected to below; A.B. lacks standing to raise fathers’ service absent actual prejudice, which record does not show |
| 4. Ineffective assistance of appellate counsel for filing Anders brief | A.B.: Anders brief was inadequate representation | Appellate counsel: Anders procedure appropriate when no non-frivolous issues exist | Court: filing Anders brief not per se ineffective; because appeal lacked arguable merit, counsel did not perform deficiently |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedures for counsel who finds appeal frivolous)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental right to care, custody, and control is a fundamental liberty interest)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (Ohio adoption of Strickland ineffective-assistance standard)
- State v. Burke, 73 Ohio St.3d 399 (1995) (waiver of closing argument can be tactical and not per se ineffective assistance)
- In re C.F., 113 Ohio St.3d 73 (2007) (applying abuse-of-discretion standard to R.C. 2151.414 findings)
- Huffman v. Hair Surgeons, Inc., 19 Ohio St.3d 83 (1985) (definition of abuse of discretion)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (1990) (unreasonable decision explained)
- In re K.W., 185 Ohio App.3d 629 (2010) (discussing standards for termination under R.C. 2151.414)