2006 Ohio 2609 | Ohio Ct. App. | 2006
{¶ 2} On May 14, 1991, F.W. was adjudicated a dependent minor child. In June 1997, J.W. was adjudicated a neglected and dependent minor child. In December 1998, M.W. was adjudicated a neglected and dependent minor child. On January 13, 2000, E.W. was adjudicated a dependent minor child. After having been in relative placement from the dates of adjudication, the children were committed to the temporary custody of FCCS in September 2003.
{¶ 3} On July 22, 2004, and pursuant to R.C.
{¶ 4} On September 12, 2005, the trial court held a hearing on the permanent custody motions. Two persons testified at the hearing: appellant and Lindsay Quinn, a caseworker for FCCS. Appellant testified that she is currently in prison serving a 22-month sentence for possession of cocaine and escape. Her anticipated date of release is July 25, 2006. Appellant last saw her children in August 2003. The children have been in foster care since September 2003. The caseworker testified that the children appeared to be bonded with each other and with the foster parents. She testified that the foster parents have not expressed whether they desire to adopt the children. She further testified that alleged fathers of three of the children had been identified, and that she attempted to contact those persons, but was unsuccessful in that regard. Additionally, the caseworker's testimony indicated that appellant failed to comply with requirements of her case plan. Specifically, she testified that appellant failed to attend parenting classes, maintain a drug free lifestyle, provide a means of support, and establish consistent, independent housing.
{¶ 5} On September 16, 2005, the trial court entered judgment. The trial court committed the children to the permanent custody of FCCS for purposes of adoption and divested the parents of any and all parental rights, privileges, and obligations, except the right to timely appeal the permanent custody order.
{¶ 6} Appellant timely appeals from that judgment, and has set forth the following assignments of error:
[I.] The trial court's factual finding that the children were too young to express their wishes for placement is not supported by competent and credible evidence.
[II.] The trial court erred by terminating the appellant's parental rights, when the appellant did not receive the effective assistance of counsel guaranteed by the Ohio and United States Constitutions.
A) Appellant's trial counsel was ineffective by failing to assert that R.C.
B) Appellant's trial counsel was ineffective by failing to cross-examine the Guardian Ad Litem.
C) Appellant's trial counsel was ineffective by failing to object to the presence of the caseworker-witness throughout the proceedings.
[III.] The trial court erred and violated the due process rights of the appellant by terminating the appellant's parental rights where there was no evidence the county children services agency checked the Ohio Putative Father Registry to ascertain the names and whereabouts of the putative fathers of the minor children.
{¶ 7} By her first assignment of error, appellant argues that the trial court's factual finding regarding the wishes of the children is not supported by competent and credible evidence.
{¶ 8} Pursuant to R.C.
(a) The child is not abandoned or orphaned 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 ending on or after March 18, 1999, 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.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) 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 ending on or after March 18, 1999.
{¶ 9} Pursuant to R.C.
{¶ 10} In analyzing the best interests of the children, the trial court, pursuant to R.C.
{¶ 11} Appellant argues that the trial court's finding relating to the wishes of the children is contrary to the evidence in the record. Statements in the record, which are cited by appellant in support of her contention that the trial court erred, indicate that F.W. was happy with her current placement and that E.W. expressed a desire not to be reunited with the mother. Even assuming the trial court's finding relating to the wishes of the children is not supported by the evidence, that erroneous finding actually favors appellant's position. Moreover, other factors cited by the trial court support its finding that permanent custody is in the childrens' best interest. For example, the trial court considered the childrens' custodial history, including their placement in a foster home since September 2003, and the childrens' interaction and interrelationship with persons who may significantly affect them, including the fact that they are bonded with each other and the foster parents. In addition, the trial court determined that the childrens' need for a legally secure placement is essential, and that type of placement cannot be achieved without the granting of permanent custody of the children to FCCS. Therefore, appellant fails to demonstrate any prejudicial error as a consequence of the trial court's stated finding that the wishes of the children are not expressed. As such, we overrule her first assignment of error.
{¶ 12} By her second assignment of error, appellant alleges that the trial court erred in terminating her parental rights because she did not receive effective assistance of counsel during the proceedings.
{¶ 13} "[T]he two-part test for ineffective assistance of counsel used in criminal cases, announced in Strickland v.
[Washington (1984),
{¶ 14} Under her second assignment of error, appellant sets forth three ways her counsel was allegedly deficient. We will address each alleged deficiency in turn.
{¶ 15} First, appellant contends that her counsel was ineffective by not asserting that R.C.
{¶ 16} Second, appellant argues that her counsel was ineffective by not cross-examining the guardian ad litem. Pursuant to In re Hoffman,
{¶ 17} Appellant maintains that cross-examination may have revealed a more "nuanced" explanation of the childrens' attitude toward their mother. However, appellant's argument is based on speculation. Nothing in the record suggests that appellant's counsel's decision not to cross-examine the guardian ad litem was not within the realm of reasonable trial strategy. Moreover, appellant fails to demonstrate that she was prejudiced by her counsel's decision not to cross-examine the guardian ad litem. Therefore, we do not find that appellant's counsel was ineffective in not cross-examining the guardian ad litem.
{¶ 18} Third, appellant argues that her counsel was ineffective in not objecting to the presence of the caseworker-witness throughout the trial court proceedings. In this case, Ms. Quinn, the FCCS caseworker who testified at the permanent custody hearing, was present during appellant's testimony. As noted by appellant, her counsel did not object to Ms. Quinn's presence during the hearing. Evid.R. 615 provides, in pertinent part, as follows:
(A) Except as provided in division (B) of this rule, at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. * * *
(B) This rule does not authorize exclusion of any of the following persons from the hearing:
* * *
(2) an officer or employee of a party that is not a natural person designated as its representative by its attorney[.]
{¶ 19} In In re Thompson, Franklin App. No. 02AP-557, 2003-Ohio-580, the appellant argued that it was error for the trial court to deny her objection to the presence of an FCCS caseworker-witness during the trial proceeding. The trial court permitted an FCCS caseworker-witness to be present in the courtroom when others were asked to remain outside. This court determined that, pursuant to Evid.R. 615, the caseworker-witness was permitted to be present. See id.
{¶ 20} Appellant contends that "there is a clear distinction between a witness who is [an] interested party in reality and a party by virtue of employment." (Appellant's brief, at 7.) Appellant also asserts that the attorney representing FCCS was an employee of the agency, thereby creating a situation where more than one "designated representative" was present on behalf of FCCS. For those reasons, appellant argues that this court erroneously applied Evid.R. 615(B)(2) in Thompson, and thatThompson should be reversed. We disagree.
{¶ 21} According to appellant's reasoning, if an attorney is an employee of the party that is not a natural person, then the attorney is the representative under Evid.R. 615(B)(2), and no one else may be designated as a representative. The rule does not provide for such a result. In addition, the rule does not distinguish between different levels of interest one party versus another may have regarding a matter. In view of Evid.R. 615(B)(2), we find no error in the presence of the caseworker-witness during the trial court proceedings.
{¶ 22} Moreover, even assuming arguendo that it was error for the caseworker to be present during the trial proceedings, appellant does not assert how she was prejudiced by the presence of the caseworker. Indeed, upon our review of the record, we find no indication that the caseworker's testimony, which occurred after FCCS's initial cross-examination of appellant, was tainted or improperly influenced because of her presence during the trial proceedings. Therefore, we conclude that appellant's counsel was not ineffective in not objecting to the presence of the caseworker throughout the trial court proceedings.
{¶ 23} Based on the foregoing, we conclude that appellant was not denied effective assistance of counsel, and we accordingly overrule appellant's second assignment of error.
{¶ 24} By her third assignment of error, appellant argues that the termination of her parental rights violated due process because there was no evidence that FCCS checked the Ohio putative father registry to ascertain the names and location of the putative fathers of the minor children.
{¶ 25} In support of this assignment of error, appellant cites R.C.
{¶ 26} Appellant seems to argue that the trial court acted in error by granting permanent custody in the absence of evidence that the putative father registry had been checked. In this case, there was no direct evidence presented at the permanent custody hearing indicating whether FCCS checked the putative father registry, or whether any or all of the fathers of the children registered pursuant to R.C.
{¶ 27} Additionally, FCCS argues in this appeal that appellant lacks standing to allege the violation of any rights of any putative father. "Standing, in the most elementary sense of the concept, requires that the right to maintain an action must be vested in the person instituting it." In re Shepard (Mar. 26, 2001), Highland App. No. 00CA12, citing Steinle v. City ofCincinnati (1944),
{¶ 28} Appellant argues that the rights of potential putative fathers of the children were violated because the putative father registry was not checked before parental rights were terminated. Appellant further argues that she has standing to raise this claim because her due process rights were violated as a result of the putative father registry not being checked. Appellant's argument assumes that the putative father registry was not checked. However, as stated above, the record contains affidavits indicating that diligent searches were made to locate known and unknown putative fathers of the children, and the caseworker's testimony at the hearing supports that assertion. Additionally, appellant has failed to explain how she was prejudiced by the alleged failure of FCCS to check the putative father registry. Upon review, we find that the record before this court does not support appellant's argument that she was prejudiced by FCCS's alleged failure to check the putative father registry.
{¶ 29} Based on the foregoing, we overrule appellant's third assignment of error.
{¶ 30} Having overruled all three of appellant's assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
French and McGrath, JJ., concur.