2020 Ohio 579
Ohio Ct. App.2020Background:
- CCDCFS removed five children from mother C.T. in Sept. 2017 after allegations of domestic violence, substance abuse in the home, inadequate supervision, and a prior agency custody period (2014–2016).
- Case plan required mother to complete domestic-violence counseling, substance-abuse treatment, and a psychological evaluation; mother inconsistently engaged, tested positive for cocaine, and did not complete required services.
- Several children went AWOL while in care; two (Ca.T. and J.B.) were later found living with mother in a hotel; mother was charged and later convicted of interfering with custody.
- Mother experienced housing instability and periods of no contact with the agency (Nov 2018–May 2019); visitation was sporadic and ultimately suspended for safety concerns.
- CCDCFS moved to modify temporary custody to permanent custody (Sept. 2018); after a contested bench trial (Aug. 5, 2019) the juvenile court granted permanent custody to the agency by clear and convincing evidence.
- On appeal, C.T. argued the permanent-custody finding was against the manifest weight of the evidence and that she received ineffective assistance of counsel; the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument (C.T.) | Defendant's Argument (CCDCFS) | Held |
|---|---|---|---|
| Whether permanent custody was supported by clear and convincing evidence / not against the manifest weight | Insufficient evidence; court improperly relied on post-filing conduct and mother had not been in agency custody 12 of 22 months | Evidence showed mother failed to remedy removal conditions, inconsistent visitation, homelessness, substance use, and factors under R.C. 2151.414(E) warrant permanent custody | Affirmed: clear and convincing evidence supports R.C. 2151.414(E)(1),(4),(10) findings and best-interest determination |
| Whether the court improperly based abandonment/lack-of-commitment findings on mother’s lack of visitation after agency terminated visits | Visitation was terminated by county; court should not fault mother for nonattendance when county suspended visits | Mother repeatedly failed to attend earlier scheduled visits, made no efforts to restore contact, and had prolonged no-contact periods; statutory presumption of abandonment applies after 90 days | Affirmed: court permissibly relied on mother’s prolonged lack of contact and concealment of AWOL children to find abandonment and lack of commitment |
| Whether mother received ineffective assistance of counsel (no closing, no objections to convictions or witness) | Counsel’s omissions were deficient and prejudicial; a closing could have challenged statutory findings and objections should have been made | Strategic choices (waiving closing, not objecting) were reasonable; supervisor witness was competent; convictions and other facts were relevant to factors the court may consider | Affirmed: no deficient performance or prejudice under Strickland; ineffective-assistance claim fails |
Key Cases Cited
- In re K.H., 119 Ohio St.3d 538, 895 N.E.2d 809 (Ohio 2008) (defining "clear and convincing" evidentiary standard in juvenile custody context)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents have a fundamental liberty interest in raising their children)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (Ohio 1954) (definition of clear and convincing evidence quoted)
- In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (Ohio 1990) (parental liberty interest tempered by child welfare)
- In re Cunningham, 59 Ohio St.2d 100, 391 N.E.2d 1034 (Ohio 1979) (welfare of the child governs custody decisions)