2011 Ohio 3221
Ohio Ct. App.2011Background
- Z.N. is the child of Marcena Burnside, born November 25, 2009, and has resided in foster care since birth.
- LCDJFS moved for permanent custody in October 2010; trial occurred December 20, 2010 before a magistrate.
- Appellant Zakery Neldon was incarcerated at the December 2010 hearing and alleged past mental health diagnoses.
- Magistrate recommended permanent custody to LCDJFS; court found best interests favored agency placement and denied parental rights.
- Appellant did not file objections to the magistrate’s report, leaving the court to review for plain error only.
- Trial evidence showed limited parental contact, historical instability, and the foster parents’ desire to adopt Z.N.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel for failing to object | Neldon; counsel’s failure blocked appeal rights. | Burnside; no demonstrated prejudice from lack of objections. | No reversible error; no prejudice shown. |
| Best interests and permanent custody supported by clear and convincing evidence | LCDJFS; evidence supports permanent custody. | Neldon; trial record insufficient to prove best interests. | Court affirmed; clear and convincing evidence supported best interest finding. |
Key Cases Cited
- State v. Hamblin, 37 Ohio St.3d 153 (Ohio) (ineffective assistance standard in criminal cases)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (two-prong standard for ineffective assistance)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (presumption of competence for counsel; need show prejudice)
- Juv.R. 40(D)(3)(b)(iv), unreported rule within Ohio Juv.R. (Ohio) (waiver of right to assign adoption by court error absent objections)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of clear and convincing evidence)
- State v. Schiebel, 55 Ohio St.3d 71 (Ohio 1990) (standard for reviewing evidence in custody cases)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (Ohio 1984) (credibility deference to trial court findings)
- Davis v. Flickinger, 77 Ohio St.3d 415 (Ohio 1997) (credibility and demeanor in guardianship context)
- In re Adoption of Holcomb, 18 Ohio St.3d 361 (Ohio 1985) (definition of clear and convincing evidence)