In re A.E.
{¶1} Respondent-appellant Tonya Currier (“Currier”) brings this appeal from the judgment of the Court of Common Pleas of Seneca County, Juvenile Division, terminating her parental rights and granting custody of the children to the Seneca County Department of Job and Family Services (“the Agency”). For the reasons set forth below, the judgment is affirmed.
{¶2} In November 2006, A.E. was born to Currier and Jonathan Eastman (“Eastman”). R. 1.1 J.E. was born to Currier and Eastman in January 2008. R. 1. On August 9, 2009, the Agency filed complaints alleging that A.E. and J.E. were neglected and dependent. Tr. 106-107. The trial court adjudicated the children as dependent on September 4, 2009. The case was closed in 2010 after significant progress was mаde on the case plan and the children were returned to their parents. Tr. 112.
{¶3} A second complaint alleging that A.E. and J.E. were neglected and dependent was filed on February 7, 2012. R. 1. The basis for the complaint was that Currier had attempted to commit suicide by cutting her wrists when her children were present. An ex parte order was issued placing the children in the temporary custody of Eastman. R. 3. On May 2, 2012, Dawn DeRan (“GAL”),
{¶4} On August 1, 2012, the Agenсy filed an amended case plan after the six month review and the amended case plan was approved by the trial court on August 27, 2012. R. 47. The amended case plan indicated that Currier had completed her parenting class. Id. However, the case plan indicated that there
{¶5} A review of the case was held on November 13, 2012. R. 82. The parties all agreed that it was in the best interests of A.E. and J.E. to remain in the temporary custody of the Agency. Id. Currier was granted unsupervised visits with the children. Id. A semi-annual review of the case plan was conducted on January 28, 2013. R. 92. The review indicated that Currier was making insufficient progress on the case plan as to making better decisions regarding relationships and violating the order of the trial court that she have no contact with William Omlor (“Omlor”). Id. The trial court approved the amended case plan on February 12, 2013. R. 93. The amended case plan required Currier to meet the following requirements: 1) follow all recommendations of the psychological evaluation; 2) take prescribed medication correctly; 3) participate in mental health counseling and follow recommendations; 4) keep children from harmful situations; 5) not engage in criminal activity; 6) follow all court orders; 7)
{¶6} The next case review by the trial court occurred on June 12, 2013. R. 101. At that time, the trial court placed the children in the temporary custody of Currier under protective supervision by the Agency. Id. This disposition was agreed upon by all the parties. Id. The case plan was amеnded to reflect this change. R. 102. On July 24, 2013, the Agency filed a motion for an ex parte motion to place the children back into the temporary custody of the Agency. R. 106. The trial court granted the motion the same day. Tr. 107. A full hearing was held on July 26, 2013. R. 111. At that time, the trial court overruled the motion for temporary custody and the children were returned to Currier. Id.
{¶7} On July 25, 2013, a semi-annual review of the case plan was conducted. R. 112. The review indicated that Currier had made some progress as to her counseling. Id. The recommendation was to continue with temporary
{¶8} On September 4, 2013, Currier filed a motion requesting temporary custоdy of the children. R. 124. That same day, the Agency filed a motion requesting permanent custody of the children. R. 125. The Agency alleged that
{¶9} On December 4, 2013, the GAL filed her final report. R. 145. The GAL indicated in her report that the frequent changes of care-givers had “had serious negative effects on [A.E.’s] development and acting out behaviors. Id. Although the parents have tried to provide a stable environment for the children, they have failed. Id. The GAL recommended that permanent custody be granted to the Agency. Id. A hearing before the magistrate was held on the motion for permanent custody of the children on December 9, December 10, December 11, December 13, December 16, and December 17, 2013. R. 173. At the hearing, the following relevant testimony was presented by the Agency.4
{¶10} Dr. Daniel Cruikshanks (“Cruikshanks”) testified that he had completed two evaluations of Currier for the Agency. Tr. 11. The first was
{¶11} On cross-examination, Cruikshanks testified that despite alleged reports that Currier was using marijuana, all of her drug screens were negative.
{¶12} Jesusa Behee (“Behee”) testified that she was the caseworker for the 2009-2010 case plan involving Currier and the children. Tr. 104. The children were adjudicated dependent on September 4, 2009, and placed in a kinship placement. Tr. 112-13. The case was closed in 2010 and the children were returned to Currier in August or September. Tr. 133. Behee admitted on cross-examination that Currier would have needed to have substantially complied with the case plan in order to have her children returned to her. Tr. 149. Behee also testified that she supported the reunification of the children with Currier in 2010 and made thаt recommendation to the court. Tr. 153.
{¶13} The Agency’s third witness was the GAL for the children. The GAL testified that the foster home had become home for the children. Tr. 167. J.E.’s
{¶14} Jennifer Jaeck (“Jaeck”) testified that she is the foster mother and the children were placed with her on September 7, 2012. Tr. 219. A.E.’s behavior in the home is troubling as she has tantrums, throws things, lies, and steals. Tr. 222. J.E.’s behavior is easier, though he is hard to focus and sometimes angrily screams in her face. Tr. 223. Jaeck described A.E. as a manipulative child. Tr. 226. Jaeck testified that she did not know if she would be interested in adopting the children.
{¶15} Currier’s counselor Patricia Abrahamson (“Abrahamson”) also testified for the Agency. Abrahamson testified that she began working with Currier in 2011 due to issues Currier was having with relationships. Tr. 243. Currier left after nine sessions, but returned in 2013 for individual and couple’s therapy with Omlor. Tr. 244. In Abrahamson’s opinion, Currier’s relationship with Omlor was volatile. Tr. 244. Abrahamson’s last session with Currier was October 30, 2013, when Currier just stopped appearing. Tr. 245, 248. During counseling, Currier was making progress toward her treatment goals. Tr. 248. Abrahamson testified that she was “devastated” when she learned that Currier had lied to her about having contact with Omlor. Tr. 250.
{¶16} Jason Windsor (“Windsor”) of the Tiffin Police Department testified that he was called on July 30, 2013, to help find Currier because she had possibly taken a bunch of pills in a suicide attempt. Tr. 283. He later learned that she was found at Omlor’s home. Tr. 284. Prior to that Windsor knew Currier from domestic disturbance calls between Currier and Eastman. Tr. 285. The children were present during those times, but they did not involve physical altercations. Tr. 285. In the years he had worked as an officer, he personally had responded to five
{¶17} Larry Mackling of the Seneca County Sheriff’s Department testified that he responded to a call concerning Currier on July 30, 2013. Tr. 294. He was dispatched to Omlor’s home to do a welfare check. Tr. 295. When he arrived, he found her very tired and incoherent. Tr. 295. Currier told him that she had taken 30 Risperidone, one milligram each. Tr. 296. Emergency services were then called. Tr. 296. Over the years, he had personally responded to ten or more calls involving Currier. Tr. 298. Most of the disputes involving Currier and Omlor concerned the parenting of their child. Tr. 300.
{¶18} Crystal Brady (“Brady”) testified that she was the managing caseworker for this case and began working with Currier in March of 2012. Tr. 337. The reason for the original complaint was that Currier had taken the children to Omlor’s home, in violation of a civil protection order, and had made a suicide attempt with the children present. Tr. 339. The children were adjudicated
{¶19} Brady testified that Currier had successfully completed the goal of getting a psychological evaluation and correctly taking her medication. Tr. 370. Currier had participated in counseling, but had four different counselors during that time. Tr. 370-71. According to Brady, Currier had stopped seeing Mel Proctor (“Proctor”) at the end of May 2013, then saw “Jackie” for a couple weeks before beginning couples counseling with Abrahamson. Tr. 372. Currier then stopped seeing Abrahamson because Currier had lied to her and was afraid to go back. Tr. 373. Currier had then began counseling at Firelands with a new therapist in November 2013. Tr. 373. In Brady’s opinion, Currier’s progress as to mental health counseling was insufficient because she had not been able to
{¶20} On the positive side, Brady testified that the children interact well with Currier. Tr. 385. On cross-examination, Brady admitted that Currier had made good рarenting decisions. Tr. 439. Brady also admitted that the fact that Currier’s psychiatrist has not returned reports to the Agency is not Currier’s fault, but just reluctance on the part of the doctor. Tr. 441. Currier’s obstetrician had
{¶21} Currier then testified on her own behalf. Currier testified that she had been living in a duplex in Tiffin since August 2013. Tr. 556. All rent and utilities were paid and she was employed as a cashier at a local gas station. Tr. 558. Currier had a valid driver’s license, a vehicle, and insurance on the vehicle. Tr. 5559. Currier testified that she was, as of the hearing, taking Zoloft for depression and Vistaril Hydroxyzine for her anxiety, as prescribed by her obstetrician. Tr. 561. Once her baby was born, she intended to return to her psychiatrist for management of her medications. Tr. 563.
{¶22} At the time of the hearing, Currier testified that she was receiving mental health counseling at Firelands. Tr. 564. At Firelands, she has a case manager who hеlps her with getting services and classes she needs. Tr. 565. She also has a counselor who is helping her work on her trust issues. Tr. 565. Currier admitted that she had lied to Abrahamson about her relationship with Omlor. Tr. 568. According to Currier, she did so because Abrahamson had made her dislike of Omlor clear and Currier did not feel it was productive to discuss it with Abrahamson. Tr. 568. As to her prior counselors, Currier testified that Proctor had released her from counseling because she had met the goals he had set. Tr. 571. She then went to Jackie for couples counseling, but found a new counselor when Jackie’s internship ended. Tr. 571. Currier admitted that her mental health “goes down when [she’s] in relationships” and she then makes poor decisions. Tr. 573. She testified that the first “suicide attempt” was not really meant to kill herself, but to express her frustration and anger with Omlor. Tr. 573. Currier acknоwledged that the children should not have seen that and that it was not healthy for them. Tr. 574. Currier testified that she now understood that she has to take time to become her own person before she can build a relationship with someone else. Tr. 578.
{¶23} Currier admitted that she had often violated court orders not to see Omlor. Tr. 582. She felt that since that relationship had reached a final
{¶24} Currier testified that her children are very attached to her, that she loves them, and that they love her. Tr. 595-96. She also claims that she was careful to make sure the kids were not present when she took the pills in her second suicide attempt. Tr. 599. Although Currier is angry, she identifies this anger as different than her prior anger. Tr. 603. Her prior anger was a rage, this is anger at herself for not working harder at getting her kids than at forming a relationship. Tr. 603.
{¶25} On cross-examination, Currier admitted that on July 30, 2013, she took 30 pills, but did not know why, only that she felt everything was hopeless. Tr. 619. She admitted to lying to Brady about the number of pills she took because she was afraid they would take her children. Tr. 619. She also admitted that she had made a comment that J.E. had made her uncomfortable, but that it was not him, but rather his behavior was inappropriate – i.e. sexual in nature, and she
{¶26} The magistrate also conducted in camera interviews with A.E. and J.E. A.E. indicated that her first choice would be to live with Eastman, but she wanted to visit with Currier for three days in a row. Tr. 664-67. She also indicated that she would like to visit with Jaeck. Tr. 664-67. A.E. described her visits with Currier as good. Tr. 668. J.E. indicated that he would like to live with Jaeck, but indicated that his second choice would be Currier and Eastman equally. Tr. 671-72. J.E. also indicated that he likes being with his sister, A.E. Tr. 673.
{¶27} On December 23, 2013, the Agency filed its closing arguments. R. 158. Currier filed her closing arguments on December 27, 2013. R. 160. On that same day, Currier’s counsel filed a motion to withdraw. R. 161. The motion was granted by the trial court on December 31, 2013, and a new attorney was appointed for Currier. R. 162 and 163. On January 2, 2014, the magistrate issued its recommendation that Currier’s parental rights be terminated аnd permanent custody of the children be granted to the Agency. R. 164. The trial court
First Assignment of Error
The trial court erred when it failed to appoint [Currier] new counsel after both [Currier] by motion and trial counsel on the record at hearing agreed the relationship was in such a state that effective representation and communication between client and counsel was impossible in violation of her due process rights. [Currier’s] due process rights were further violated when the trial court granted trial counsel’s motion to withdraw before the magistrate’s decision was filed and [Currier’s] wishes as to objections were considered.
Second Assignment of Error
[Currier’s] due process rights were violated by trial counsel’s ineffective assistance. Trial counsel failed to secure an independent expert to assist in [Currier’s] defense when [Currier’s] mental health was the central issue in the [Agency’s] case. Trial counsel further failed to object to the portions of testimony from the [Agency’s] expert where he relied upon hearsay that was provided eithеr directly from the case worker or in reports provided by the [Agency]. Trial counsel failed to
call any witnesses in [Currier’s] defense in a permanent custody proceeding, a proceeding known [as] the death penalty of juvenile law.
Third Assignment of Error
The trial court’s judgment should be reversed because it was against the manifest weight of the evidence in finding there was clear and convincing evidence sufficient to grant [the Agency’s] permanent custody motion or in finding that [the Agency] used reasonable efforts to return the child to one of his parents.
In the interest of clarity, we will address the assignments of error out of order.
{¶28} In the third assignment of error, Currier claims that the trial court’s findings were against the manifest weight of the evidence. The right to raise one’s own child is a basic and essential civil right. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). “Parents have a ‘fundamental liberty interеst’ in the care, custody, and management of their children.” In re Leveck, 3d Dist. Hancock No. 5-02-52, 5-02-53, 5-02-54, 2003-Ohio-1269, ¶6. These rights may be terminated, however, under appropriate circumstances and when all due process safeguards have been followed. Id. When considering a motion to terminate parental rights, the trial court must comply with the statutory requirements set forth in
(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the
best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply: (a) The child is not abаndoned or orphaned, has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents.
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(2) With respect to a motion made pursuant to [
R.C. 2151.413(D)(1) ], the court shall grant permanent custody of the child to the movant if the court determines in accordance with division (E) of this section that the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent and determines in accordance with division (D) of this section that permanent custody is in the child’s best interest.(C) In making the determination required by this section * * *, a court shall not consider the effect the granting of permanent custody to the agency would have upon any parent of the child. A written report of the guardian ad litem of the child shall be submitted to the court prior to or at the time of the hearing held pursuant to division (A) of this section * * * but shall not be submitted under oath.
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(E) In determining at a hearing held pursuant to division (A) of this section * * * whether a child cannot be placed with either
pаrent within a reasonable period of time or should not be placed with the parents, the court shall consider all relevant evidence. If the court determines by clear and convincing evidence, at a hearing held pursuant to division (A) of this section * * * that one or more of the following exist as to each of the child’s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: (2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
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(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
{¶29} A review of the record in this case indicates that there was substаntial evidence presented that Currier suffers from a bipolar mood disorder, anti-social personality disorder, and borderline personality disorder. As a result of these issues, she is resistant to treatment and places her own desires ahead of the needs of the children. No one denied that Currier loved her children or that they loved her. Everyone testified that there was a strong bond between Currier and the children and that she was capable of making good parenting decisions when her mental illness was not an issue. However, there was ample testimony that Currier has repeatedly placed the children in dangerous situations and has provided little stability for them. As recently as July 2013, Currier attempted to commit suicide by overdosing. Although the children did not witness this attempt, her feelings of hopelessness caused her to make a decision without considering the needs of her children or the effect her decision would have on her children. The pattern of this type of behavior has been repeated numerous times. This has put her children in a position of desiring to spend time with her, but preferring to live with other people. The testimony was clear that it was unlikely that Currier would be able to care for her children within the next year and that the children needed stability. Thus, the judgment of the trial court was not against the weight of the evidence. The third assignment of error is overruled.
{¶30} In the first assignment of error, Currier claims that the trial court erred by not granting her motion for new counsel, which was made approximately a month before the hearing.
In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a сonflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. * * If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. * * * In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.
United States v. Calabro, 467 F.2d 973, 986 (2nd Cir.1972) (citations omitted). “In the absence of such a Sixth Amendment cоncern, the decision of a trial court to refuse substitution of counsel will be reversed only if the court has abused its discretion.” State v. Richey, 6th Dist. Sandusky No. S-09-28, 2011-Ohio-280, ¶30.
{¶31} On November 13, 2013, Currier submitted a motion to the court requesting new trial counsel. R. 140. The basis for the motion was that Currier did not trust her attorney and felt that her attorney was disclosing confidences to the Agency. Id. The motion was overruled without a hearing on November 15,
{¶32} In the second assignments of error, Currier claims that she was denied effective assistance of counsel.
In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel’s essential duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel’s ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
On the issue of counsel’s ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; * *915 State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N.E.2d 905.
{¶33} Currier alleges that her counsel was ineffective for three reasons: 1) failing to obtain an independent psychological evaluation and expert to counteract the testimony of Cruikshanks; 2) failing to object to Cruikshanks testimony and report that was based upon hearsay evidence not admitted; and 3) failing to call additional witnesses to support Currier’s case. We will first address the failure to obtain an independent psychological evaluation. The law in Ohio is well settled that when the mental health of a parent is the predominant issue in a permanent
{¶34} Currier also claims that her counsel was ineffective for fаiling to object to Cruikshanks reference to hearsay evidence as the basis for his
{¶35} Finally, Currier claims that her counsel was ineffective for failing to call additional witnesses. The decision of counsel whether to call witnesses is a matter of trial strategy that will not usually be second guessed on appeal. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶113. The record contains no proffer as to what the additional witnesses would have said. Although Currier claims that the witnesses could have shown that she was a good parent,
{¶36} Having found no error in the particulars assigned and argued, the judgments of the Court of Common Pleas of Seneca County, Juvenile Division, are affirmed.
Judgments Affirmed
ROGERS and PRESTON, J.J., concur.
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