2014 Ohio 1594
Ohio Ct. App.2014Background
- K.H. born April 22, 2010; methadone detected at birth and immediate foster care placement.
- K.H. placed in emergency shelter care on April 28, 2010; found abused and dependent on July 14, 2010; appellee granted temporary custody.
- Appellant E.F. (father) lives with A.H. (mother) in her parents’ home; inconsistent with case plan; poor income and no high school diploma; no driver’s license; failed to pay rent/utilities.
- Father relapsed after September 9, 2010, testing positive for cocaine May 12, 2011; did not re-enter treatment; multiple positive/missed drug tests; unsuccessful completion of parenting classes.
- Visitation with K.H. was inconsistent; caseworker noted incidents including injuries to E.F. and threatening comments.
- Magistrate found E.F. incapable of parenting in foreseeable future; trial court granted permanent custody to appellee; concern noted that A.H. would not regain custody but lived with E.F. in her parents’ home.
- There was a delay between the magistrate’s decision (Oct. 26, 2011) and the trial court’s judgment (Oct. 1, 2013); issue whether due process or time limits were violated; court ultimately affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance due to delay in ruling on permanent custody | E.F. alleges writ of procedendo should have been sought for delay | Delay did not prejudice outcome; statutes were directory, not mandatory | Assignment of error overruled; judgment affirmed |
Key Cases Cited
- In re Wingo, 143 Ohio App.3d 652 (Ohio 2001) (applies criminal-style IAC standard to permanency cases)
- In re Heston, 129 Ohio App.3d 825 (Ohio App.3d 1993) (recognizes IAC claims in permanent custody appeals)
- State v. Hamblin, 37 Ohio St.3d 153 (Ohio 1988) (presumes licensed counsel competence; Strickland standard applies)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (establishes performance and prejudice showing for IAC)
- In re Davis, 84 Ohio St.3d 520 (Ohio 1999) (time limits for juvenile proceedings; writ of procedendo as remedy)
- In re Omosun Children, 106 Ohio App.3d 813 (Ohio App.3d 1996) (older ruling overruled by Davis; no per se due process violation without remedy)