In re A.J.
Rendered on the 23rd day of March, 2018.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee-Montgomery County Children Services
PATRICK J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Appellant
TUCKER, J.
{¶ 2} We conclude that the juvenile court did not err in granting permanent custody of A.J., Jr. to MCCS. We further conclude that the juvenile court did not abuse its discretion by denying the motion for continuance. Finally, even assuming that counsel‘s conduct was not reasonable, we find no prejudice and thus reject the claim of ineffective assistance of counsel.
{¶ 3} Accordingly, the judgment of the juvenile court is affirmed.
I. Facts and Course of the Proceedings
{¶ 4} A.J., Jr. (hereinafter “A.J.“) was born in 2000 to F.E. (hereinafter “Mother“). A.J. was born with cerebral palsy. He has an IQ of 40, which places him in the lower one-percent of the population. He operates at the level of a six-year old. His condition requires physical therapy, occupational therapy, speech therapy and ongoing medical treatment. A paternity test confirmed that A.J., Sr. (hereinafter “Father“) is A.J.‘s biological father.
{¶ 5} A.J. was adjudicated dependent in 2001. He was placed in the protective
{¶ 6} In 2003, MCCS filed a motion to modify the disposition to temporary custody as Mother had failed to cooperate with the terms of her case plan. In 2004, A.J. was placed in the legal custody of his paternal grandmother. At some point, Father moved to Indiana. As of 2010, Father was incarcerated in an Indiana prison for assaulting a different woman.
{¶ 7} In May 2015, MCCS became aware that A.J. had been hospitalized for malnourishment. Medical staff found bruising over half of his body. He was 13 years old at the time and weighed only 67 pounds. The grandmother admitted to hitting him and preventing him from eating. At that time, Father was incarcerated in Indiana and MCCS was unable to locate Mother. A.J. was placed in the temporary custody of a paternal cousin. In February 2016, MCCS filed a motion seeking to have temporary custody transferred from the cousin to the agency as the cousin indicated that he was unable to care for A.J. due to A.J.‘s special needs. The agency also filed a motion for a first extension of temporary custody. A.J. was placed in a foster home.
{¶ 8} On October 12, 2016, MCCS filed a motion for permanent custody. A hearing was set for January 5, 2017. On January 4, 2017, Father, who remained incarcerated in Indiana, filed a motion for continuance through his attorney. In a letter
{¶ 9} The motion was denied, and the hearing was conducted as scheduled. During the hearing, Mother voluntarily relinquished her parental rights. Following the hearing, the magistrate filed a decision awarding permanent custody to the agency. Father filed objections which were ultimately overruled by the trial court.
{¶ 10} Father appeals.
II. Permanent Custody Determination
{¶ 11} Father‘s first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING MCCS’ MOTION FOR PERMANENT CUSTODY.
{¶ 12} Father contends that the record does not support the juvenile court‘s decision to award permanent custody to MCCS. Specifically, he contends that the record does not support a finding that the child could not be placed with him within a reasonable time.
{¶ 13} In Ohio,
{¶ 15}
{¶ 16} With respect to abandonment, the juvenile court found that Father has had “little to no involvement with the child” for almost 14 years, including periods during which there was no contact for over 90 days at a time. The court also found that sections (1),
{¶ 17} The record demonstrates that the child has never been in the custody of Father. Father has been in and out of prison since 2010. During that time, he did not seek an order of visitation with the child. Further, there is evidence that Father has not seen the child since a 2015 visit during a period that he was not in prison. Thus, we conclude that the record supports a finding that Father abandoned A.J.
{¶ 18} We next turn to the issue of whether the child could or should be returned to Father.
* * * notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the problems that initially caused the child to be placed outside the home. * * * [T]he court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
{¶ 19} As noted, case plans were developed for both Mother and Father. In the earlier case plans, Father was required to participate in mental health and anger management therapy, obtain housing and employment, and to refrain from further acts of violence. The case plan created in 2015, while Father was incarcerated in Indiana,
{¶ 20}
{¶ 21} The juvenile court also found the following provision of
The parent is incarcerated at the time of the filing of the motion for permanent custody or the dispositional hearing of the child and will not be available to care for the child for at least eighteen months after the filing of the motion for permanent custody or the dispositional hearing.
{¶ 22} The juvenile court found that the evidence supported a finding that Father‘s release date is January 2019, more than eighteen months after the dispositional hearing. The court concluded that there was no evidence to demonstrate that he would be released prior to that date. Father‘s letter to his counsel was based upon the speculation that he
{¶ 23} The juvenile court found
{¶ 24} Finally, the court found the “any other factor the court considers relevant” provision of
{¶ 25} Once the juvenile court determines that there is clear and convincing evidence that one of the factors enumerated in
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has 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 * * *; (d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 26} The record demonstrates that A.J. is currently residing in a foster home where his special needs are being met by a foster mother who takes only special needs children. The record demonstrates that the foster mother and A.J. are well-bonded, and that A.J. appears happy. He is currently enrolled in school and is doing well. The record is devoid of any evidence to indicate that A.J. has any relationship with his father.
{¶ 27} The Guardian Ad Litem recommended that the court award permanent custody to the agency. The record shows that A.J. has never been in the custody of his father. Given his special needs, the child needs a legally secure placement. Whenever father is released from prison, and we note that he has not disputed the court‘s finding regarding a 2019 release date, he will need to obtain employment, housing and provide for A.J.‘s special needs. Father will also need to undergo the required mental health treatment set forth in his previous case plan. Additionally, if Father is required to remain in Indiana upon his release, a home study would have to be conducted after he obtained housing. The record shows that Father did not comply with the earlier case plan and it shows that he failed to even attempt to contact the agency as required by the 2015 case plan despite the efforts of the case worker to contact him.
{¶ 28} Upon review, we find clear and convincing evidence to support the trial
III. Failure to Continue Hearing Date
{¶ 29} The second assignment of error asserted by Father states:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT‘S MOTION FOR CONTINUANCE AND/OR ORDER TO ATTEND HEARING PRIOR TO RELEASE.
{¶ 30} Father contends that the juvenile court should have granted a continuance of the hearing. In support, he argues that “it was possible” that he would be released from prison in May or June of 2017. He further notes that there had not been a second extension of temporary custody.
{¶ 31} “The grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). Therefore, an appellate court will not reverse a trial court‘s decision to deny a motion for continuance unless it finds that the trial court abused its discretion. Id. The term “abuse of discretion” implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 32} Those factors to be considered in determining a motion for continuance include: (1) the length of the delay requested, (2) whether other continuances had been requested and received, (3) the inconvenience to those involved in the litigation, (4) whether the requested delay was for legitimate reasons, dilatory, purposeful, or contrived,
{¶ 33} The notice of the final hearing was served in October 2016. However, the motion to continue was not filed until January 4, 2017, one day prior to the scheduled hearing. Attached to the motion was a handwritten letter from Father to his counsel. In the letter and motion, Father sought a five or six month continuance indicating that a May or June 2017 release date was dependent upon whether he was approved for work release. However, there was no competent evidence introduced into the record to corroborate the release date. Indeed, the evidence in the record demonstrates that his release date is in 2019.
{¶ 34} We conclude, on this record, that the court did not abuse its discretion in denying the motion for the continuance. Simply put, there was no way to determine how long of a continuance would be needed. Further, Father was represented by counsel at the hearing, his opposition to the motion for permanent custody was known, and there was no showing that he had any additional information to offer at a hearing.
{¶ 35} The second assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 36} The third assignment of error is as follow:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO HIS MOTION FOR CONTINUANCE AND/OR ATTEND HEARING PRIOR TO RELEASE.
{¶ 38} The right to counsel in termination proceedings includes the right to effective assistance of such counsel. In re Heston, 129 Ohio App.3d 825, 827, 719 N.E.2d 93 (1st Dist.1998). In order to obtain a reversal of a judgment based upon a claim of ineffective assistance of trial counsel, a movant must establish both that his trial counsel‘s conduct did not fall within the range of reasonable professional assistance, and that there is a reasonable probability that the outcome of the proceedings would have been different had counsel‘s performance not been deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 39} Regardless of whether counsel‘s performance was deficient with regard to a continuance or arranging for Father‘s participation in the hearing, we can find no prejudice. While Father claimed he might be released in mid-2017, there are many unknown variables including the fact that the evidence demonstrated his earliest release date is in 2019. Further, it is unknown whether he will be required to remain in Indiana requiring A.J. to leave behind his medical providers and school. It is not known whether and when Father will be able to secure and maintain a job and housing, whether he will be able to develop a relationship with his child who has not lived with him for more than a decade, and whether he will be capable of meeting the child‘s special needs. Moreover, the court found numerous
{¶ 40} There was nothing in Father‘s letter to indicate that he had anything to add
{¶ 41} We conclude that, based upon this record, Father has failed to demonstrate any prejudice. Accordingly, the third assignment of error is overruled.
V. Conclusion
{¶ 42} All of Father‘s assignments of error being overruled, the judgment of the juvenile court is affirmed.
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr. Sarah E. Hutnik Patrick J. Conboy, II Christopher Epley Michael Brush John Pinard Hon. Anthony Capizzi