In re A.F., E.F.
Court of Appeals No. WM-13-007; Trial Court Nos. 20123028, 20133003
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
Decided: February 21, 2014
[Cite as In re A.F., 2014-Ohio-633.]
SINGER, J.
Thomas A. Thompson, Williams County Prosecuting Attorney, and Katherine Zartman, Assistant Prosecuting Attorney, for appellee. Ryan S. Thompson, for appellant.
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SINGER, J.
{¶ 1} Appellant mother appeals the judgment of the Williams County Court of Common Pleas, Juvenile Division, terminating her parental rights for two children and granting permanent custody to a county children‘s services agency.
{¶ 3} Police arrested appellant and Er.F. on an initial charge of felony unauthorized use of a motor vehicle. A.F. was sheltered in the custody of appellee, William County Department of Job and Family Services. On July 24, 2012, A.F. was adjudicated a dependent child. The court granted temporary custody of her to appellee. She was placed in foster care.
{¶ 4} The arrest of appellant and Er.F. permitted a number of theft and drug offenses in several counties and two states to catch up with them. Nonetheless, appellant was released on July 2, 2012, only to be arrested the next day for stealing a purse from a parked car. Er.F. was released sometime in July 2012, and remained mostly free until January 2013, when he was imprisoned for a felony conviction.
{¶ 5} Pregnant at the time of her arrest, appellant gave birth to a boy in a Michigan women‘s prison in February 2013. The baby, E.F., was taken into emergency custody by appellee the following day. He was subsequently adjudicated dependent and appellee
{¶ 6} The matter proceeded to a September 2013 hearing on the motion at which now seven-year-old A.F. testified to her life prior to foster care. A.F. testified to seeing her parents steal and inject drugs in her presence. She also reported loud late night parties hosted by her parents that kept her awake on school nights. A.F.‘s teachers testified to a dramatic improvement in her performance at school once she moved to foster care.
{¶ 7} The children‘s father appeared at two of the three days of hearings, able to attend because he had been transferred by the Department of Corrections into transitional control at a Toledo halfway house. The father testified that he would like to keep the children, but was unable to offer assurances of employment or secure housing once he completed his sentence. Moreover, other charges remained unresolved. A caseworker testified that the father‘s visitation with the children, even when he was not incarcerated, was inconsistent. The caseworker also testified that she had offered to work with the father on a reunification plan, but that the father declined to participate.
{¶ 8} Appellant was not present for the hearing. At the time, she remained imprisoned in Michigan, serving a 23 to 168 month sentence for identity theft. Appellee introduced records showing that appellant had been convicted of 50 criminal offenses as an adult. She has three unresolved criminal matters remaining when she is released from the Michigan penal system.
{¶ 10} From this judgment, appellant now brings this appeal.
{¶ 11} Appointed counsel for appellant has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and seeks leave to withdraw as counsel.
{¶ 13} Appointed counsel has met the requirements set forth in Anders. Appellant did not file a brief. Accordingly, this court shall proceed to examine the potential assignments of error set forth by counsel and the entire record below to determine whether this appeal lacks merit rendering it wholly frivolous.
I. The Appellant was denied effective assistance of counsel.
II. The Appellant was deprived of her due process rights because she was not present at the hearing.
I. Ineffective Assistance of Counsel
{¶ 15} To successfully assert a claim of ineffective assistance of counsel, a party must demonstrate that counsel‘s performance was deficient and that this deficiency operated to the prejudice of the represented. “Prejudice” exists only when the lawyer‘s performance renders the result of the trial unreliable or the proceeding unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant must show that there exists a reasonable probability that a different result would have been returned but for counsel‘s deficiencies. See id. at 694.
{¶ 16} We have thoroughly reviewed the record in this matter and fail to find any deficiency in trial counsel‘s performance. The evidence properly admitted during the termination hearing was voluminous and persuasive and supports all of the trial court‘s findings. Accordingly, appellate counsel‘s first potential assignment of error is without merit.
II. Absence of Appellant at Hearing
{¶ 17} Appellate counsel‘s second potential assignment of error suggests that appellant‘s due process rights may have been violated because the trial court denied her motion to be transported from her Michigan prison to be present for the termination of
{¶ 18} In Jesse P., the surviving parent of two children was incarcerated when the trial court conducted the hearing on a children‘s services agency‘s motion to terminate parental rights. The trial court denied the father‘s motion to convey him from prison to the hearing, although it admitted into evidence the father‘s letter indicating his desire to regain custody. Following the hearing, the court terminated the father‘s parental rights and granted permanent custody to the children‘s services agency. On appeal, the father claimed the trial court‘s refusal to order his attendance at the hearing denied him his right to defend against the motion to terminate parental rights.
{¶ 19} In Jesse P., at ¶ 51, we set forth the analytical structure to resolve this question by quoting our prior decision in In re Joseph P., 6th Dist. Lucas No. L-02-1385, 2003-Ohio-2217, ¶ 52:
We begin by noting that an individual does not have an absolute right to be present in a civil case to which he is a party. In re Sprague, 113 Ohio App.3d 274, 276, 680 N.E.2d 1041(12th Dist.1996); Mancino v. Lakewood, 36 Ohio App.3d 219, 221, 523 N.E.2d 332 (8th Dist.1987). However, we must also note that an individual has a “basic,” “fundamental,” and “essential” civil right to raise his or her own children. See Sprague, 113 Ohio App.3d at 276; In re Dylan R., 6th Dist. Lucas No. L-02-1267, 2003-Ohio-69, at ¶ 21. Because of the competing interests
involved in proceedings such as these, Ohio courts have applied a balancing test to determine whether a parent‘s due process rights are violated when the court proceeds with a hearing on a permanent custody motion without the parent‘s presence. Specifically, a court should balance the following factors: “(1) the private interest affected, (2) the risk of erroneous deprivation and the probable value of additional safeguards, and (3) the governmental burden of additional procedural safeguards.” Sprague, 113 Ohio App.3d at 276, citing Mathews v. Eldridge, 424 U.S. 319, 335, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976). We previously approved of the Ninth District‘s reasoning in a case construing these factors. According to the Ninth District, a parent‘s due process rights are not violated when: (1) the parent is represented at the hearing by counsel, (2) a full record of the hearing is made, and (3) any testimony that the parent wishes to present could be presented by deposition. In the Matter of Leo D., Deandre E., and Desandra E., 6th Dist. Lucas No. L-01-1452, 2002-Ohio-1174, citing In re Robert F., 9th Dist. Summit No. 18100, 1997 WL 537666 (Aug. 20, 1997).
{¶ 20} If anything, the burden of granting appellant‘s motion to transport is greater here than in Jesse P. or Joseph P. In neither of those cases was the incarcerated parent who requested to be at the hearing being held in another state. Moreover, appellant was represented by counsel at the hearing, a full record of the proceedings was made and letters from appellant were introduced into evidence. Given these circumstances, the trial
{¶ 21} Upon this record, we concur with appellate counsel that appellant‘s appeal is without merit. Moreover, upon our own independent review of the record, we find no other grounds for a meritorious appeal. Accordingly, this appeal is found to be without merit, and wholly frivolous. Counsel‘s motion to withdraw is found well-taken and is, hereby, granted.
{¶ 22} On consideration, the judgment of the Williams County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.