2020 Ohio 716
Ohio Ct. App.2020Background
- Two children, C.H. (b. Aug 2016) and T.H. (b. Aug 2017), were removed after parents Tiffany T. and Tyler H. were arrested May 21, 2018; children entered agency custody and were adjudicated neglected/dependent in July 2018.
- Parents were effectively homeless (last known mailing/physical address: Lot 13, Salisbury Park campground), had minimal contact with the children after August 2018, and did not engage in reunification services.
- MCDJFS moved for permanent custody on May 13, 2019; personal service at the campground failed and MCDJFS obtained service by publication (notice published May 25, 2019) for a June 4, 2019 hearing.
- At the June 4 hearing parents were absent though counsel attended; MCDJFS caseworker and the GAL testified parents made no progress on the case plan, had three visits in August 2018, and the GAL recommended permanent custody.
- Trial court awarded permanent custody to MCDJFS (judgment filed June 26, 2019); both parents appealed, raising defective service, insufficiency of evidence, and, for Tyler, ineffective assistance, failure to continue sua sponte, and challenges to denial of 60(B) relief.
- The Third District affirmed: it rejected service/notice and counsel-ineffectiveness claims, found clear-and-convincing evidence supports R.C. 2151.414(B)(1)(a)/(E) and best-interest findings, and held no plain error in refusing a sua sponte continuance; one judge concurred in part and dissented in part on procedural/statutory grounds.
Issues
| Issue | Parent(s) Argument | State/Appellee Argument | Held |
|---|---|---|---|
| Validity of service by publication / notice | Parents: MCDJFS did not exercise reasonable diligence; publication omitted last-known address and courthouse street address, so notice defective | MCDJFS: attempted personal service at last-known campground, affidavit supported publication; parents had actual/constructive notice via counsel and prior hearings | Court: service by publication proper here; parents had actual notice; failure to include courthouse street address not fatal; assignments overruled |
| Sufficiency / clear & convincing evidence for permanent custody | Parents: MCDJFS failed to prove statutory prongs and best interests; testimony inadequate | MCDJFS: parents abandoned/contacted negligibly, failed case-plan tasks, lacked housing/employment, children ready for adoption; factors under R.C. 2151.414(E) and (D) met | Court: clear and convincing evidence supports R.C. 2151.414(B)(1)(a) (cannot/should not place with parents) and best-interest factors; award affirmed |
| Ineffective assistance of counsel / failure to continue sua sponte | Tyler: counsel misinformed him about hearing nature; counsel’s equivocation prejudiced him; trial court should have continued sua sponte | State: record shows parents were aware or at least negligent; counsel’s equivocation not proven prejudicial; no continuance was requested and no plain error | Court: counsel’s equivocal phone response not shown to be prejudicial; no plain error in failing to sua sponte continue; assignments overruled |
| Motion for relief from judgment (Civ.R. 60(B)) / ripeness | Tyler/Tiffany: sought 60(B) relief alleging attorney misadvice, agency failings; claimed trial court erred denying relief | State: trial court had not ruled on 60(B) when appeal filed; Tyler’s filing timing and inconsistent affidavits undermined claim | Court: trial court had not denied Tyler’s 60(B) motion before appeal—claim not ripe; assignment dismissed |
Key Cases Cited
- In re C.F., 113 Ohio St.3d 73 (2007) (discusses due process and reasonable-efforts framework in child-removal/permanent-custody context)
- In re Thompkins, 115 Ohio St.3d 409 (2007) (explains that attempts to provide actual notice must be reasonably calculated and discusses reasonable-diligence standard)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance-of-counsel test applied in civil contexts such as custody proceedings)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (definition of "clear and convincing" standard)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978) (appellate review deferential where some competent, credible evidence supports trial court)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984) (weight and credibility of evidence are for factfinder)
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standard for manifest-weight/credibility review)
- State v. Unger, 67 Ohio St.2d 65 (1981) (factors for continuance discretionary review)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process requires notice reasonably calculated to apprise interested parties)
- Dusenbery v. United States, 534 U.S. 161 (2002) (due process does not require "heroic efforts" to provide actual notice)