2018 Ohio 523
Ohio Ct. App.2018Background
- H.W., born June 2015, tested positive for cocaine, opiates, and marijuana and required about one month of hospitalization and methadone treatment for neonatal withdrawal. Parents have histories of substance abuse.
- Sandusky County JFS obtained temporary custody of H.W. on July 15, 2015; a case plan was adopted but parents did not complete services. Mother last visited on August 3, 2015; father’s last visit was February 23, 2017.
- H.W. remained in foster care (with a change of foster placement in October 2016) and showed medical and developmental improvement. The agency moved to modify temporary custody to permanent custody on March 31, 2017.
- At the July 13, 2017 permanent-custody hearing: both parents arrived late; mother was under the influence and left early; father knowingly and voluntarily consented to permanent custody and waived rights. Father’s counsel left the hearing at his request.
- The juvenile court found by clear and convincing evidence that statutory grounds (including abandonment and the child having been in agency custody for over 12 of 22 months) were met, that reunification efforts were reasonable but unsuccessful, and that permanent custody to the agency was in H.W.’s best interest; judgment granted September 13, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of continuance (July 13, 2017 hearing) | Father argued continuance necessary due to pending adoption petition, unavailable witness, and a felony court date conflict. | Trial court chose to proceed; hearing set months earlier with notice; adoption filing doesn’t divest juvenile court; felony date known earlier. | Denial not an abuse of discretion; no reversible error. |
| Ineffective assistance of counsel | Father claimed counsel failed to subpoena witnesses and advised an unavailable witness existed, causing him to consent. | Court and record show counsel acted reasonably; father failed to identify excluded testimony or prejudice. | Counsel not shown ineffective under Strickland/Bradley; claim denied. |
| Manifest weight of evidence for permanent custody | Father argued permanent custody was against manifest weight because of counsel conduct and lack of evidence. | Agency, CASA/GAL, and caseworker testimony supplied clear and convincing evidence of statutory grounds and best interest factors. | Judgment supported by competent, credible evidence; not against manifest weight. |
| Anders withdrawal of mother’s counsel on appeal | Appointed counsel asserted no non-frivolous issues after review and moved to withdraw under Anders. | Mother did not file pro se brief or oppose withdrawal. | Court conducted independent review, found appeal frivolous, granted withdrawal and affirmed judgment. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure for appointed counsel to seek withdrawal when appeal is frivolous)
- State v. Unger, 67 Ohio St.2d 65 (Ohio 1981) (abuse-of-discretion standard for continuances)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (applying Strickland in Ohio)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (clear-and-convincing evidence standard)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (manifest-weight review requires some competent, credible evidence)