In re J.H.
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case No. F2013-0059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 23, 2015
APPEARANCES:
For Appellee
KENNETH W. OSWALT Licking County Prosecutor By: J. ANDREW STEVENS Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055
For Appellant
JOHN D. WEAVER 542 S. Drexel Ave. Bexley, Ohio 43209
For Father
USHERALA JOHNSON 98 Hamilton Park Columbus, Ohio 43203
Guardian ad Litem
MICHAEL DALSANTO 3. S. Park Place, Suite 220 Newark, Ohio 43055
{¶1} Appellant Kimberly Shortridge (“Mother“) appeals the September 24, 2014 Judgment Entry entered by the Licking County Court of Common Pleas, Juvenile Division, which overruled her objections to the magistrate‘s June 10, 2014 decision, approved and adopted the magistrate‘s decision, and granted permanent custody of her minor child to Appellee Licking County Department of Job and Family Services (“the Agency“).
STATEMENT OF THE FACTS AND CASE
{¶2} Mother is the biological mother of J.H. (dob 3/26/2006). Lucas Ruddock is J.H.‘s biological father.1 On January 28, 2013, the Agency received a referral relative to the family. The referral indicated Mother and her boyfriend were abusing methamphetamines; there was no gas, electric, or water in the house in which Mother and J.H. were living; J.H. slept on a futon in the living room as the home only had one bedroom; and the landlord had commenced eviction proceedings. The trial court placed J.H. in the emergency custody of the Agency on February 4, 2013.
{¶3} On April 3, 2013, the trial court adjudicated J.H. a dependent child and granted temporary custody to the Agency. The Agency filed a motion for permanent custody on December 31, 2013.
{¶4} The testimony at the hearing revealed Mother has a history of substance abuse, financial instability, domestic violence, and involvement with the criminal justice system. When the matter commenced, Mother was in county jail. She was released in April, 2013, but was arrested again in July, 2013, for Burglary. Between April, and July,
{¶5} At the onset of the Agency‘s involvement, the legal father of J.H. was Frederick Husk. Husk is deceased. The Agency received information in August, 2013, Lucas Ruddock, not Husk, was J.H.‘s biological father. Ruddock completed paternity testing, and was determined to be J.H.‘s father on January 15, 2014. Ruddock met with the Agency on February 19, 2014, and provided the names of his mother and sister as potential placements for J.H. Upon investigation, the Agency discovered Ruddock‘s sister had her parental rights terminated with respect to her own child, and Ruddock‘s mother was involved in that matter. Ruddock is currently incarcerated at Southern Ohio Correctional Facility, and is not scheduled to be released until September, 2022.
{¶6} J.H. was originally placed with his half-brother, Nicholas Murray, and Murray‘s girlfriend, Leah Starkey. J.H. was placed in his current foster home in May 24, 2013, after Murray was charged with possession of marijuana drug paraphernalia.
{¶7} The magistrate issued his decision on June 10, 2014, granting permanent custody to the Agency. An amended decision was issued on June 26, 2014, to correct typographical errors in the original. Mother filed preliminary objections to the magistrate‘s decision on July 9, 2014. Via Judgment Entry filed September 10, 2014, the trial court overruled Mother‘s objections, terminated her parental rights, and granted permanent custody of J.H. to the Agency. Mother filed a motion for reconsideration of
{¶8} This case comes to us on the expedited calendar and shall be considered in compliance with
{¶9} Mother appeals, raising the following assignments of error:
{¶10} “I. THE TRIAL COURT COMMITTED PLAIN ERROR BY GRANTING PERMANENT CUSTODY WITHOUT INVOLVING FATHER IN THE CASE PLAN AND WHEN NEITHER FATHER NOR ANY MEMBERS OF HIS FAMILY WERE GIVEN CONSIDERED FOR PLACEMENT.
{¶11} “II. APPELLANT WAS PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶12} “III. THE TRIAL COURT‘S DECISION THAT IT WAS IN J.H.‘S BEST INTERESTS TO GRANT PERMANENT CUSTODY WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”
I
{¶13} In her first assignment of error, Mother contends the trial court committed plain error in granting permanent custody as the Agency failed to involve Ruddock in the case plan, and failed to consider placement with Ruddock or any members of his family.
{¶14} Assuming, arguendo, the trial court erred in granting permanent custody to the Agency when the Agency failed to involve Ruddock in the case plan, we find any such error to be harmless. The Agency learned Ruddock was possibly J.H.‘s father in
{¶15} Mother further asserts the trial court erred in granting permanent custody as the Agency failed to consider placement of J.H. with members of Ruddock‘s family. Ruddock provided the names of his mother and sister as possible placements for J.H. Upon investigation, the Agency learned Ruddock‘s sister had her parental rights terminated with respect to her own child, and Ruddock‘s mother was involved in that matter. Any failure by the Agency to consider these family members was harmless as they were not suitable.
{¶16} Mother‘s first assignment of error is overruled.
II
{¶17} In her second assignment of error, Mother raises an ineffective assistance of counsel claim. Specifically, Mother asserts trial counsel was ineffective for failing to file motions for legal custody to family members.
{¶18}
{¶20} Appellant bears the burden of proof on the issue of counsel‘s effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In Ohio, a licensed attorney is presumed competent. Id.
{¶21} Mother failed to show the outcome of the permanent custody hearing would have been different had trial counsel filed motions for legal custody. The trial court heard testimony relative to several maternal relatives, including J.H.‘s half-brother, Nicholas Murray. The testimony revealed these relatives were not suitable placements for J.H. Nicholas Murray had recently been arrested on drug charges.
{¶22} Mother‘s second assignment of error is overruled.
III
{¶23} In her final assignment of error, Mother contends the trial court‘s finding it was in J.H.‘s best interest to grant permanent custody to the Agency was not supported by clear and convincing evidence.
{¶25} As set forth in our statement of the facts and case, supra, we find there was competent, credible evidence Mother failed to remedy the problems which caused the removal of J.H. from the home. Mother failed to make significant progress on her case plan, in large part due to her incarceration. At the time of the hearing, approximately ten months remained on Mother‘s sentence.
{¶26} J.H. is well adjusted in his current placement. His foster parents have expressed a willingness to adopt the child. The foster parents are willing to continue to facilitate the bond between J.H. and his half-siblings.
{¶27} Based upon the foregoing, we find the trial court‘s finding an award of permanent custody was in the J.H‘s best interest was supported by clear and convincing evidence.
{¶28} Mother‘s third assignment of error is overruled.
By: Hoffman, J.
Gwin, P.J. and
Farmer, J. concur