IN RE A.S.
C.A. Nos. 14CA010532, 14CA010534
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 9, 2014
2014-Ohio-2458
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07JC16614
Dated: June 9, 2014
BELFANCE, Presiding Judge.
{¶1} Appellants, Rachel W. (“Mother“) and Robert S. (“Father“), appeal from a judgment of the Lorain County Court of Common Pleas, Juvenile Division, that terminated their parental rights and placed their minor child in the permanent custody of Lorain County Children Services (“LCCS“). For the reasons that follow, this Court affirms.
I.
{¶2} Mother and Father are the natural parents of A.S., born September 5, 2006. The parents have an older child together who was removed from their custody shortly after his birth in 2004. However, that child is not a party to this appeal. Mother had used cocaine during her pregnancy with A.S.‘s older sibling, who was born four weeks premature and tested positive for cocaine. In addition to concerns about Mother‘s drug use, the older child‘s juvenile case focused on drug use by Father, domestic violence between the parents, and their lack of stable housing.
{¶3} Shortly after the birth of A.S., LCCS filed a dependency and neglect complaint that alleged parenting problems similar to those in the case of the older sibling. Although A.S. did not test positive for drugs at the time of his premature birth, Mother admitted that she had used cocaine during most of the pregnancy. The agency‘s initial concerns in this case were that Mother continued to abuse drugs and alcohol, lacked stable housing, and was not able to meet the basic needs of A.S. At that time, Father was not living with Mother and his whereabouts were unknown. A.S. was adjudicated a neglected and dependent child and was allowed to stay with Mother under an order of protective supervision by LCCS. Mother was enrolled in a residential substance abuse treatment program at that time, where she could reside with A.S. and receive supportive services from the facility‘s staff. In addition, she had agreed to cooperate with LCCS and the treatment facility personnel. The order of protective supervision was terminated during May 2007 upon motion by LCCS because the agency believed that Mother had completed a substance abuse treatment program and was remaining sober through compliance with an aftercare program and the Alcoholics Anonymous 12-step program. The agency further believed that Mother was meeting the basic needs of A.S.
{¶4} During May 2012, LCCS became involved with the family again after receiving referrals that Mother had started using cocaine again. Mother initially cooperated with LCCS on a voluntary basis. On August 12, 2012, however, LCCS filed a motion to remove A.S. from Mother‘s legal custody, alleging that a change had occurred in the circumstances of A.S. and Mother, and that his best interest required that he be placed in the temporary custody of LCCS. See
{¶5} The trial court found that a termination or modification of the legal custody order was warranted under the terms of
{¶6} Over the course of the next several months, however, neither parent made sufficient progress on any of the goals of the case plan. Father did not maintain contact with LCCS or the juvenile court for a period of several months during the case. Mother started several drug treatment programs but repeatedly dropped out and began using drugs again. Although Mother attended most scheduled visits with A.S., Father did not. Moreover, neither parent completed parenting classes or attended any of the appointments with A.S.‘s doctors or therapists that would have taught them how to appropriately care for their child.
{¶7} On July 9, 2013, LCCS moved for permanent custody of A.S. Mother filed an alternate dispositional motion for legal custody. Father later informed the court that he supported Mother‘s request for legal custody. Following an evidentiary hearing on the alternate dispositional motions on October 7 and 8, 2013, the trial court found that A.S. could not be placed with either parent within a reasonable time or should not be placed with them and that
{¶8} Mother and Father separately appealed, and this Court later consolidated their appeals for review. Mother‘s two assignments of error and Father‘s four assignments of error will be combined and rearranged for ease of discussion.
II.
MOTHER‘S ASSIGNMENT OF ERROR I
THE JUDGMENT ENTRY IN THIS MATTER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO AWARD PERMANENT CUSTODY OF THE CHILD TO [LCCS.]
FATHER‘S ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT MOTHER AND FATHER HAD NOT MET THE MINOR CHILD‘S MEDICAL AND DENTAL NEEDS BASED UPON THE TESTIMONY OF WITNESSES WHO HAD NO MEDICAL EXPERTISE OR BACKGROUND.
FATHER‘S ASSIGNMENT OF ERROR II
THE TRIAL COURT‘S FINDING THAT THE MINOR CHILD COULD NOT OR SHOULD NOT BE PLACED WITH MOTHER OR FATHER WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
FATHER‘S ASSIGNMENT OF ERROR IV
THE TRIAL COURT‘S JUDGMENT THAT PERMANENT CUSTODY TO THE AGENCY WAS IN THE CHILD‘S BEST INTERESTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} We will address these assigned errors together because each pertains to the weight and/or propriety of the evidence supporting the trial court‘s permanent custody decision. Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary
{¶10} The trial court found that the first prong of the permanent custody test had been satisfied because A.S. could not be returned to either parent within a reasonable time or should not be returned to them based on its factual findings under
{¶11} To demonstrate reversible error, however, Mother and Father must demonstrate not only that the trial court committed error but also that the error negatively affected the outcome of the case. Lowry v. Lowry, 48 Ohio App.3d 184, 190 (4th Dist.1988), citing Gries Sports Ents., Inc. v. Cleveland Browns Football Co., Inc., 26 Ohio St.3d 15, 28 (1986). Because the trial court is required to find only one statutory ground to support the first prong of the permanent custody test, this Court has repeatedly emphasized that any error in its alternate findings is not prejudicial as long as one of the trial court‘s stated grounds is proper. See, e.g., In re R.H., 9th Dist. Lorain Nos. 11CA010002 and 11CA010003, 2011-Ohio-6749, ¶ 14.
{¶12} Consequently, as we have reviewed the record and determined that the evidence fully supported the trial court‘s first finding under
{¶13}
{¶14} After receiving referrals about the well-being of A.S., the caseworker went to the home to find Father sleeping on the couch and A.S. tending to his own needs. A.S. had been eating junk food, which was scattered all over the room. Although it is not clear from the record when LCCS learned about the developmental delays and medical problems of A.S., the caseworker apparently knew at that time that A.S. was not toilet trained at the age of six. When A.S. came to the door to let her into the home, however, the caseworker observed that he had feces going up his back and was so drenched in urine that even his shirt was soaked. Father awoke and immediately began cleaning up the food that was strewn around the room. The caseworker redirected him to first tend to the hygiene needs of A.S. When the caseworker
{¶15} Neither parent argues that Father had sufficiently remedied his parenting problems or that he was able to provide A.S. with a suitable permanent home at the time of the hearing. Instead, Father supported Mother‘s motion for legal custody because he was unable to meet even his own daily needs without assistance. His financial needs were covered by benefits he received from the United States Department of Veterans Affairs (“VA“), but the check was made payable to a designated payee because he was unable to handle his own finances. Father had limited cognitive ability, could not communicate well, and required assistance with daily tasks such as running errands or paying his bills. Father also suffered from mental health and substance abuse problems, which he failed to resolve during this case. Father also failed to maintain regular contract with the caseworker or the court, did not visit A.S. regularly, and did not attend any of the child‘s medical or therapy appointments.
{¶16} Both parents argue that Mother had sufficiently remedied her parenting problems and was prepared to provide A.S. with a suitable home at the time of the hearing. Although Mother alternatively argues that the trial court should have granted an extension of temporary custody, none of the parties had requested that the trial court extend temporary custody. Both parents explicitly supported mother‘s motion for full legal custody.
{¶17} Mother testified that she knew how to care for A.S. and had been meeting his needs before he was removed from her home, but LCCS presented substantial evidence to the contrary. The trial court had no expert testimony before it about the specific medical or psychological diagnoses of A.S. or either parent. Although Father argues through his first assignment of error that the trial allowed improper lay opinion testimony on this issue, he is
{¶18} Nevertheless, the trial court did admit the testimony of the caseworker and other lay witnesses about their personal observations of A.S.‘s significant developmental delays, his medical and dental problems, and the behavior of the parents that affected their ability to meet A.S.‘s needs. The witnesses testified about A.S.‘s physical and developmental limitations that were apparent to them as lay people, the extensive and ongoing treatment that he received after he was removed from the home, the significant positive changes in the child‘s behaviors that they observed during this case after his placement in a foster home, and the lack of any involvement of the parents in those changes. Based on her own observations, the caseworker testified that she and LCCS remained concerned that Mother would not be able to meet the basic and special needs of A.S. Taken in context, the caseworker did not purport to render an opinion that “relate[d] to matters beyond the knowledge or experience possessed by lay persons” that would require expert testimony under
{¶19} At the time A.S. came into LCCS custody, he was not toilet trained, he had difficulty walking, most of his teeth were decayed and required extensive dental treatment, and
{¶20} After his removal from the home, A.S. began receiving regular medical and dental care and began attending occupational and physical therapy sessions several times a week. Addressing A.S.‘s special medical, dental, and developmental needs was a primary component of the case plan, which the parents were required to address to be reunified with him. Despite being encouraged to attend A.S.‘s medical and therapy appointments, however, Mother and Father failed to attend any of the appointments during the 12 months before the permanent custody hearing. Mother did not enroll in parenting classes until shortly before the permanent custody hearing. At the time of the hearing, she had completed only a few classes. Consequently, LCCS remained concerned throughout this case that Mother and Father did not acquire any of the knowledge or skills that they would need to meet the special needs of A.S.
{¶21} Mother admitted that she did not attend any of the medical and therapy appointments, despite being encouraged to do so. Several witnesses testified that, through regular therapy and treatment, A.S. had made significant developmental changes over the course of the year, including that he was toilet trained and his speech and mobility had improved significantly. The foster mother testified about the physical and occupational therapy appointments that A.S. attended several times a week as well as the exercises that she performed with him at home for approximately two hours every day to improve his strength, coordination, and mobility.
{¶22} At the hearing, Mother attempted to explain her lack of attendance at the medical and therapy appointments by pointing to the fact that the providers were located in Westlake,
{¶23} Mother also failed to make substantial progress on other primary goals of the case plan: addressing her substance abuse and mental health problems and demonstrating an ability to financially provide for A.S. Although she had been in and out of numerous drug treatment programs during the past ten years, she was never able to maintain long-term sobriety from her “drug of choice[,]” cocaine. Mother failed to regularly submit to drug testing, as ordered by the court, and many of the samples that she did submit tested positive for drugs. During this case, Mother entered several different programs, but did not complete an approved residential drug treatment and aftercare program. She repeatedly dropped out of treatment or aftercare programs because she “didn‘t want to follow the rules” and would typically begin using drugs again.
{¶24} The first witness to testify at the hearing, S.W., had known Mother through the AA program for several years. She testified that Mother informed her that she had suffered several drug relapses since October 2012, her purported sobriety date, but had not disclosed the
{¶25} Apparently after the caseworker confronted Mother about S.W.‘s letter, Mother admitted that she had not been honest about her abstinence from drugs and stated that her actual sobriety date was May 2013, right about the time that S.W. sent the letter. During her multiple drug relapses throughout this reopened case, Mother became involved in criminal activity that led to two periods of incarceration, stemming first from a theft conviction and later for violating the terms of her probation by testing positive for drugs. At the time of the hearing, although Mother then purported to have been sober for approximately four months, she had not completed a drug treatment and aftercare program that sufficiently addressed her longtime addiction to cocaine.
{¶26} Mother also failed to complete the mental health component of the case plan. Although she admitted that she had mental health problems and had been taking a prescribed psychiatric medication, she did not obtain a mental health assessment until after LCCS filed the permanent custody motion. She had not started any follow-up treatment with a counselor or psychiatrist.
{¶27} Finally, Mother was required to demonstrate that she had a source of income that she could budget to financially provide for the basic needs of A.S. Mother had no independent source of income but was dependent upon Father‘s VA benefits for support. Father‘s VA benefits were sufficient to provide for the family‘s basic needs, provided that the funds were properly managed. Although Mother had managed Father‘s VA benefits for the family, she was
{¶28} Without explanation, Mother further testified that she does not qualify for food stamps because she owes the department of job and family services $8,000 for “extra money for food stamps.” Mother had also been unable to open a cable television account in her own name because of an outstanding balance with the provider. During this case, Mother did not obtain employment or take any other steps to improve her ability to financially provide for her son‘s needs on a consistent basis. At the time of the hearing, Father‘s adult daughter continued to manage Father‘s VA benefits, and Mother‘s outstanding debts to the cable company and the department of job and family services had not been resolved.
{¶29} The evidence before the trial court overwhelmingly demonstrated that the parents had failed to substantially remedy any of the problems that led to A.S.‘s removal from their home. Consequently, the trial court did not err in finding LCCS had established the first prong of the permanent custody test under
{¶30} Mother and Father also challenge the trial court‘s finding that permanent custody to LCCS was in the best interest of A.S. When determining whether a grant of permanent custody is in a child‘s best interest, the juvenile court must consider all the relevant factors, including those enumerated in
{¶31} Although Mother visited A.S. on a consistent basis during this case, her interaction with him never progressed beyond supervised visitation because she did not comply with any of the primary goals of the case plan. Father attended only about 25 percent of the scheduled visits and did not engage in play with A.S. when he did attend. For a period of approximately five months, Father did not attend any of the scheduled visits with A.S. As explained already, neither parent attended any of the medical and therapy appointments and lacked any training about how to address the special needs of the child. With his foster family, on the other hand, the basic and special needs of A.S. were being met, and he was receiving consistent love, care, and encouragement in that home.
{¶32} The guardian ad litem testified that, although A.S. was seven years old at the time of the hearing, she had not asked him about his wishes because he had significant cognitive delays. She testified that, in her opinion, permanent custody was in his best interest.
{¶33} A.S. had spent most of his life in the custody of his parents who did not adequately provide for his basic or special needs. During the 12 months that he lived outside their home, however, A.S. had resided in a stable home, where his special medical, dental, and development needs were consistently addressed. He had made significant improvements while living in the foster home and had assimilated into that family.
{¶34} The trial court had clear and convincing evidence before it to support its conclusion that A.S. was in need of a legally secure permanent placement and that such a placement would only be achieved by terminating parental rights and placing him in the
{¶35} Therefore, given the evidence before the trial court, Mother and Father have failed to demonstrate that the trial court erred in finding that permanent custody was in the best interest of A.S. Mother‘s first and Father‘s first, second, and fourth assignments of error are overruled.
FATHER‘S ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING FATHER‘S MOTION FOR [A] CONTINUANCE OF THE TRIAL.
{¶36} Father‘s third assignment of error is that the trial court erred in denying his motion to continue the permanent custody hearing. The decision to grant or deny a continuance lies within the sound discretion of the trial judge, which requires a balancing of “any potential prejudice to a [party against] concerns such as a court‘s right to control its own docket and the public‘s interest in the prompt and efficient dispatch of justice.” State v. Unger, 67 Ohio St.2d 65, 67 (1981). Pursuant to
{¶38} Although Father had not requested counsel throughout the pre-hearing proceedings, he filed a motion for court-appointed counsel less than two weeks before the permanent custody hearing was scheduled to commence. The trial court apparently contacted the attorney who was appointed as Father‘s trial counsel that same day and filed the order appointing her a few days later. The following day, less than one week before the hearing was scheduled to commence, Father‘s counsel filed a motion for a continuance, requesting more time to become familiar with the facts of the case.
{¶39} The trial court denied the written motion, explaining that trial counsel had been informed about the hearing date at the time she agreed to accept the appointment by the court. Given that Father was aware of the impending proceedings but waited until shortly before the hearing to request court-appointed counsel and counsel was aware of the impending hearing date when she accepted the appointment, under the circumstances of this case, we cannot say that the trial court acted unreasonably or arbitrarily when it denied Father‘s request for a continuance. Moreover, Father has failed to argue or demonstrate any prejudice to his defense by the trial court‘s denial of the continuance. Father‘s third assignment of error is overruled.
MOTHER‘S ASSIGNMENT OF ERROR II
MOTHER‘S TRIAL COUNSEL WAS INEFFECTIVE IN ASSISTING HER IN THIS MATTER.
{¶40} Mother‘s remaining assignment of error is that she was denied the effective assistance of trial counsel because counsel failed to “subpoena several witnesses” who “would
{¶41} To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A “deficient performance” is one that fell below an objective standard of reasonableness. Id. at 687-88. To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. Id. at 694. Moreover, trial counsel‘s decision whether to call a witness generally “falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490 (2001).
{¶42} As explained above, the trial court‘s permanent custody decision focused in part on Mother‘s ability, at the time of the hearing, to provide her son with a suitable home under circumstances of sustained sobriety and stable mental health. Even assuming counsel was deficient in failing to call LCCS witnesses to testify about Mother‘s past ability to reach her prior case plan objectives, Mother has not established prejudice. Mother‘s ability to successfully work a case plan five or six years earlier, although relevant to the background of this case, did not establish that she had the current ability to provide A.S. with a suitable permanent home. Given the evidence in the record before us, Mother has not explained how such testimony would have affected the outcome of the case. Mother‘s second assignment of error is overruled.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
EVE V. BELFANCE
FOR THE COURT
HENSAL, J.
WHITMORE, J.
CONCUR.
APPEARANCES:
KATHLEEN M. AMERKHANIAN, Attorney at Law, for Appellant.
THOMAS MCGUIRE, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and ERIN MYERS, Assistant Prosecuting Attorney, for Appellee.