2015 Ohio 4669
Ohio Ct. App.2015Background
- Twins Ge.D. and Gi.D., born January 23, 2013, were removed from parents shortly after birth after CSB learned Mother had poor prenatal care and drug use; parents had prior child-services and criminal histories in Florida.
- Father was arrested weeks after the removal, extradited to Florida, and ultimately convicted and serving lengthy prison terms for sexual offenses against young children.
- CSB obtained temporary custody, later moved for permanent custody; trial court granted permanent custody to CSB and terminated both parents’ rights. This court previously reversed one grant and remanded for further proceedings.
- On remand, the trial court again granted permanent custody; Father appealed, raising five assignments of error: weight/sufficiency of evidence for permanent custody, admission/identification of a Florida conviction record, ineffective assistance for failing to secure Father’s participation, admission of an unsworn foster-parent statement, and failure to dismiss for alleged defective case‑planning.
- The juvenile court found one dispositive statutory ground under R.C. 2151.414(E)(11): both parents had previously had parental rights involuntarily terminated as to a sibling (S.D.) — supported by a certified Florida judgment and Mother’s testimony — and that permanent custody was in the children’s best interest (bonding, custodial history, lack of viable kinship placement).
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (CSB / Court) | Held |
|---|---|---|---|
| 1) Whether permanent custody was supported by clear and convincing evidence / whether judgment was against weight of the evidence | Evidence did not clearly and convincingly establish a statutory ground or that permanent custody was in children’s best interest | Certified judgment showing prior involuntary termination as to sibling, guardian ad litem and caseworker testimony on bonding, custodial history, lack of kinship placement; only one E-factor required | Affirmed: clear and convincing evidence supports R.C. 2151.414(E)(11) and best‑interest finding; judgment not against weight of the evidence |
| 2) Admissibility/identification of Florida conviction record (CSB Ex. 1) | Exhibit insufficient to identify Father as the same offender; name alone is not enough | Burden here is clear and convincing (not beyond a reasonable doubt); multiple records and facts (arrest timing, counsel filings, Father’s prison address/number, credit for time served) identify Father as the convicted person | Affirmed: record clearly and convincingly links Father to the Florida judgment |
| 3) Ineffective assistance for not arranging Father’s transport or adequate participation | Trial counsel failed to secure Father’s physical presence or timely alternative (deposition/affidavit) and prejudiced outcome | Even if counsel’s conduct was deficient, Father cannot show prejudice given Father’s long incarcerative sentences and lack of alternative custodial supporters | Affirmed: no prejudice shown under Strickland; assignment overruled |
| 4) Allowing unsworn statement by foster father and relying on it | Foster father was not sworn; statement admitted in violation of right to confront and rules requiring oath | Trial court invited foster parents to speak; no objection made at trial; key findings relied on sworn testimony (guardian ad litem, caseworker); any error forfeited and not plain error | Affirmed: no reversible or plain error; judge relied on sworn evidence |
| 5) Failure to dismiss complaint for defective case‑plan (remand) | Original dispositional order was defective because Father was omitted from case plan; missed 90‑day window required dismissal | Father had counsel at disposition, was arrested/extradited, did not object; CSB later proposed an amended plan and the court found reasonable‑efforts bypass (R.C. 2151.419) based on prior involuntary termination; circumstances differ from In re S.R. | Affirmed: denial of dismissal not error; In re S.R. not controlling under these facts |
Key Cases Cited
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (defines clear and convincing evidence)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard)
- Bradley, 42 Ohio St.3d 136 (Ohio 1989) (adopts Strickland test in Ohio)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (manifest-weight standard; Crosby/Eastley standard for challenges to weight of the evidence)