In The Matter Of: K.W., D.W., Jr., and J.W.
Appellate Case No. 2013-CA-107
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
October 17, 2014
2014-Ohio-4606
Trial Court Case Nos. 2012-474, 2012-475, 2012-476 (Juvenile Appeal from Common Pleas Court)
OPINION
Rendered on the 17th day of October, 2014.
. . . . . . . . . . .RYAN A. SAUNDERS, Atty. Reg. #0091678, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Appellee, Clark County Dept. Of Family & Children Services
RICHARD L. KAPLAN, Atty. Reg. #0029406, Post Office Box 751192, Dayton, Ohio 45475
Attorney for Appellant, A.W.
. . . . . . . . . . . . .HALL, J.,
{¶ 1} The mother of K.W., D.W. Jr., and J.W. appeals a juvenile court’s decision to terminate her parental rights and commit the children to the permanent custody of the Clark County Department of Job and Family Services (CCDJFS). Finding no error, we affirm.
{¶ 2} Mother came to the attention of CCDJFS in December 2011 after she and her newborn, J.W., tested positive for marijuana. CCDJFS began working with Mother, and a case plan was assigned to her in February 2012. The next month, CCDJFS learned of a domestic-violence incident between Mother and her boyfriend, S.F., in which he knocked over a coffee table onto the children and later kicked it into the face of one child, and learned that a domestic-violence incident had occurred earlier that March with the father of two of the children, D.W., Sr. It also learned that in 2010 and 2011 there had been several other domestic-violence incidents between Mother and S.F. and Mother and D.W. Sr. An agreed protective supervision order for the children was entered in April, and after another domestic-violence incident the following month, CCDJFS sought and received an emergency temporary shelter care order, which allowed the agency to remove the children from their home. The children were placed in a foster home, and the trial court named a court appointed special advocate (CASA) representative to be the children’s guardian ad litem (GAL). In October, the court committed the children to the temporary custody of CCDJFS.
{¶ 3} CCDJFS moved for permanent custody in May 2013. Over a four-day trial, the court heard testimony from Mother, Mother’s grandmother, the children’s foster father, the clinical counselor who saw Mother at Mental Health Services of Clark County, the psychologist who evaluated Mother, the CASA/GAL, and Mother’s social worker’s supervisor. The social worker herself was not called to testify. During the trial, though, Mother moved for a continuance to obtain her testimony because the supervisor could not answer questions put to her about matters recorded in the social worker’s notes. The trial court denied the motion after counsel for
{¶ 4} In November 2013, the trial court granted CCDJFS permanent custody of the children, who were then 1, 2, and 3 years old, and terminated all parental rights. As to the children’s fathers, the court found that they had never been part of their children’s lives and had no interest in being involved. Mother, the court found, had failed to remedy the problems that had caused the children’s initial removal from their home and had demonstrated a lack of commitment and dedication to the children by regularly failing to support them. The court further found that the children could not be placed with Mother within a reasonable time or should not be placed with her and found that it was in the children’s best interests for CCDJFS to have permanent custody.
{¶ 5} Mother appealed.
II. ANALYSIS
{¶ 6} Mother assigns three errors to the juvenile-court proceedings. The first assignment of error alleges that the juvenile court’s permanent-custody decision is against the manifest weight of the evidence. The second alleges that the court erred by not continuing the trial to obtain the testimony of Mother’s social worker and also alleges that the court erred by not ordering an updated psychological evaluation. The third assignment of error alleges that trial counsel rendered Mother ineffective assistance.
{¶ 7} “In a proceeding for the termination of parental rights, all of the court’s findings must be supported by clear and convincing evidence.” In re M.S., 2d Dist. Clark No. 2008 CA 70, 2009-Ohio-3123, ¶ 15, citing
{¶ 8} This case is controlled by the statute governing the disposition of a dependent child,
1. The parental-placement finding
{¶ 9}
{¶ 10} The trial court here determined that both of the above situations exist in this case. The court found that CCDJFS engaged in reasonable case planning and made diligent efforts to assist Mother to remedy the conditions that caused the children to be removed. Specifically, CCDJFS prepared a case plan with the goal of reunification that had reasonable objectives and that set forth services that, if completed, would have helped Mother achieve the goal. But the court found that Mother failed continuously and repeatedly to substantially remedy the problem conditions. Although medical, psychiatric, psychological, and other social and rehabilitative services and material resources were made available to Mother, she did not follow through with any of the services, which her medical, psychological, and psychiatric records all show, the court noted. The court pointed out that the voluminous records of McKinley Hall (where Mother was to receive drug and alcohol treatment), Mercy Reach (where Mother received some drug and
{¶ 11} The only argument that Mother asserts against the court’s parental-placement finding is that she completed at least some of her case plan. We will explain later why this argument fails, in our discussion of the best-interest finding.
{¶ 12} We determine that the trial court reasonably concluded, based on clear and convincing evidence, that the children cannot be placed with Mother within a reasonable time or should not be placed with her.
2. The best-interest finding
{¶ 13}
{¶ 14} Mother challenges the finding that the children are adoptable based on the proposition that expert testimony is necessary on the matter of adoptability. Here, the children’s foster father, the GAL, and the CCDJFS supervisor all testified that the children would likely be adopted. Mother says that evidence of a child’s adoptability must come from an expert who places children for adoption, and that none of these witnesses is such an expert, but she cites no law that supports this proposition. We are skeptical that expert testimony is needed to establish a
{¶ 15} Mother also takes issue with the finding that the children have had no meaningful contact with her and the finding that no loving relationship exists between the children and her. Although Mother attended roughly three-quarters of her scheduled visits with the children, the GAL testified that, during those visits, Mother had little interaction with the children. Also, the GAL’s written reports say that, at the end of at least one visit, when the foster father arrived to pick up the children one of them ran towards the foster father and that the older two children call their foster parents “Paw-Paw” and “Mom.” Further, the GAL reports say that one of the children has told the foster parents that he wants them to be his parents. Given this evidence, the trial court could have reasonably concluded that, though Mother had contact with and loved the children, the nature and quality of the contact and the children’s feelings toward Mother did not compel the conclusion that denial of permanent custody is in the children’s best interest.
{¶ 16} Regarding her ability to provide a home for the children, Mother points out that her grandmother testified that she would help Mother care for the children. But her
{¶ 17} Mother next challenges the evidence from the GAL. Mother says that the GAL never testified, but based on the trial transcript, we find that the GAL/CASA representative (Andrea Kenerly McCrory) testified on the third day of trial and was cross-examined. Mother also contends that the trial court should not have relied on the GAL’s reports because they are not evidence, citing in support our opinion in In re Alfrey, 2d Dist. Clark No. 01CA0083, 2003-Ohio-608. But in that case we did not say that a GAL’s report is not evidence; we said that it “is not a matter of evidence.” (Emphasis added.) In re Alfrey at ¶ 23. It is true that, “ ‘[o]rdinarily, a GAL’s report is not considered evidence.’ ” Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801, ¶ 80, quoting In re Daneasha Sherman, 3d Dist. Hancock Nos. 05-04-47, 05-04-48, 05-04-49, 2005-Ohio-5888, ¶ 29; see also In re Robinson/Brooks Children, 5th Dist. Stark No. 2004-CA-00094, 2004-Ohio-6142, ¶ 13 (saying that “a guardian ad litem’s report should not be considered evidence”). This is because “[a] guardian ad litem is an agent of the court,” In re Alfrey at ¶ 16, and in a permanent custody proceeding, a written report by the GAL is required by statute, see
{¶ 18} Finally, Mother challenges the trial court’s finding that she failed to remedy the conditions that caused her children’s removal. She points out that she did complete parts of her case plan, which is true. The problem is that she failed to complete the most important parts: she failed to follow through with mental-health treatment; she failed to complete drug-and-alcohol treatment and continued to take drugs; she failed to follow through with services that would directly help her children. We note too that “even where a parent has participated in his or her case plan and completed most or all of the plan requirements, a trial court may still properly determine that such parent has not substantially remedied the problems leading to agency involvement.” In re A.L., 5th Dist. Guernsey No. 11 CA 23, 2012-Ohio-481, ¶ 15; see also In re W.A., 10th Dist. Franklin Nos. 06AP-485, 06AP-486, 2006-Ohio-5750, ¶ 17 (“Failure to complete significant aspects of a case plan, despite opportunities to do so, is grounds for terminating parental rights.”). Based on competent and credible evidence, the trial court reasonably found that Mother failed continuously and repeatedly to substantially remedy the conditions that caused the children to be removed from her care. Compare In re D.H., 2d Dist. Montgomery No. 25159, 2012-Ohio-4619, ¶ 49 (pointing out that, though mother claimed compliance with her case plan, the evidence showed that mother was not consistent in complying with the plan’s requirements for housing, employment, therapy, and visitation).
{¶ 20} The first assignment of error is overruled.
B. The Motions for Continuance and Reevaluation
{¶ 21} Mother alleges, in the second assignment of error, that the trial court should have continued the trial to obtain her social worker’s testimony. “A trial court has broad discretion when ruling on a motion for a continuance, and an appellate court will not reverse a trial court’s grant or denial of such a motion absent an abuse of discretion.” (Citation omitted.) In re Z.R., 2d Dist. Montgomery No. 22338, 2008-Ohio-2586, ¶ 12.
{¶ 22} The CCDJFS supervisor who testified could not answer questions about matters recorded in case notes made by Mother’s social worker. So Mother moved for a continuance to allow the social worker, who had not been subpoenaed, to come in and testify. (The social worker was pregnant around this time, and the record suggests that the reason she was not called was the imminent birth of her child.)
I don’t quite understand why, if what you’re trying to prove is something in the notes and they’re agreeable to the admission of the notes, how could you get any better proof of that. It’s firsthand, here it comes, here it is. They are their records. They’re stipulating that’s their records. They’re stipulating they could be admissible, they should be read, they should be entered. I don’t understand, anything else you could do beyond that. I won’t grant the motion to set aside any certain time for another witness who’s not here if what you’re trying to prove is what’s in the notes, and they’re agreeable to the admission of the notes.
(Day 3, Tr. 110-111). Mother fails to convince us that the trial court’s decision was unreasonable and an abuse of discretion.
{¶ 23} Mother also alleges that the trial court should have ordered the psychologist to update his 11-month-old evaluation of her. After talking with Mother and reviewing her treatment records, the psychologist’s original evaluation concluded that she was not focused on correcting the problems in her life:
It was my opinion that she was-had a history of problems with mood, had definitely had a problem with history with trust, which she openly acknowledged that she didn’t trust anyone; that she had been involved with some problematic relationships, which numerous sources indicated; and that she was expressing, at that time, a desire to maintain an involvement with a person who had assaulted her
on at least I believe six different occasions. She seemed to have no real awareness how those situations might be considered a negative impact on her children, focusing her energies on doing whatever it is she had to do to get Children Services out of her life by meeting expectations at whatever level were sufficient, but without understanding that this relationship with Children Services could be a collaborative, supportive one to truly address the problems.
(Day 2, Tr. 30-31). The psychologist “saw significant problems in her ability and willingness to maintain relationships, to use supports, and to address her own psychological needs in such a way as to change the situation that would allow her to be an independent, safe, and appropriate parent for her children.” (Id. at 32).
{¶ 24} Mother was concerned that this evaluation failed to capture her (presumably improved) current condition. But the trial court assured her that it would appropriately weigh the psychological evaluation evidence: “I’ll give it the weight it is entitled to. I don’t find there’s just cause for further evaluation. It’s incumbent upon the department to prove its case. If their evidence is not sufficient, not relevant, not timely, not accurate, then they probably won’t meet their burden.” (Id. at 132). Furthermore, when the evaluating psychologist was asked how his original evaluation would be affected if he assumed that Mother had not completed any drug and alcohol treatment program, he said it would not change: “If she has not completed any substance use treatment program ever, and I’m not aware of any, then * * * it would further support the opinion that I offered 11 months ago that she has difficulties that need to be addressed.” (Id. 55-56). And when asked the effect on his opinion of Mother’s having five assessments and three
{¶ 25} “ ‘[T]he admission of evidence lies within the broad discretion of the trial court * * *.’ ” In re J.M., 2d Dist. Montgomery No. 22836, 2009-Ohio-3950, ¶ 29, quoting State v. Conway, 109 Ohio St.3d 412, 848 N.E.2d 810, 2006-Ohio-2815, ¶ 62. The extent to which a trial court relies on a psychologist’s testimony about a prior parental evaluation is a weight decision by the trier of fact. In re S.J., 2d Dist. Montgomery No. 25551, 2013-Ohio-3653, at ¶ 35. We note too that a psychologist may be given up-to-date information on which to formulate current opinions. In re Majors, 12th Dist. Butler No. CA90-02-019, 1991 WL 124424, *2 (July 8, 1991). A permanent-custody determination should not be made primarily on the basis of the outdated evaluation if a parent’s conditions have demonstrably changed since a psychological evaluation was completed. In re S.C., 189 Ohio App.3d 308, 2010-Ohio-3394, 938 N.E.2d 390, ¶ 33-34 (4th Dist.). But an evaluation is not necessarily rendered incompetent solely by the occurrence of some subsequent changes. See Rahe v. Rahe, 1st Dist. Hamilton No. C-990719, 2000 WL 1299236, *3-4 (Sept. 15, 2000).
{¶ 26} Here, though Mother says that she has changed, we see no evidence that her conditions have demonstrably changed in a magnitude that would cause us to reverse the trial court’s permanent-custody decision. Compare In re A.M., 5th Dist. Holmes No. 10 CA 15, 2010-Ohio-6141, ¶ 21 (finding no basis on which to reverse the trial court’s permanent custody decision where the mother challenged the psychologist’s evaluation on the ground that it was ten months old at the time of trial, arguing that in the seven months before the evidentiary hearing
{¶ 27} The second assignment of error is overruled.
C. The Claim of Ineffective Assistance of Counsel
{¶ 28} Lastly, in the third assignment of error, Mother alleges that trial counsel rendered her ineffective assistance. “Claims of ineffective assistance of counsel are assessed against the two part test of Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.” In re Lakes, 149 Ohio App.3d 128, 2002-Ohio-3917, 776 N.E.2d 510, ¶ 30 (2d Dist.). The claimant first must show that “counsel’s performance was deficient.” Strickland at 687. The claimant then must show that “the deficient performance prejudiced the defense.” Id.
{¶ 29} “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. The claimant must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). Mother points to five instances of counsel’s representation that she says were objectively unreasonable.
{¶ 30} Mother contends that counsel failed to prepare properly to cross-examine the
{¶ 31} Mother fails to overcome the presumption that counsel’s cross-examination of the psychologist and mental-health counselor was sound trial strategy. Compare In re S.W., 6th Dist. Lucas No. L-12-1073, 2012-Ohio-3610, ¶ 5 (“In this case, A.W. has failed to demonstrate that her attorney’s actions were any more than acceptable trial strategy. Her attorney did not cross-examine the medical expert witnesses who testified about A.W.’s diagnostic mental health assessment and her drug and alcohol therapy * * *. A.W. has not demonstrated that cross-examination would have revealed any facts that would benefit A.W.’s case.”).
{¶ 32} Mother next contends that counsel should have objected to testimony about the
{¶ 33} Mother contends that counsel should have subpoenaed her social worker to testify because “[u]ndoubtedly facts which were not in the social worker’s notes would have been available to the Court.” Appellant’s Reply Brief, 2. And Mother contends that counsel should not have stipulated to the social worker’s notes. But “[t]he mere statement that counsel failed to secure all the proper witnesses is without meaning absent a showing that this action was a violation of defense counsel’s duty * * * and that the witnesses could have actually added some new and different testimony.” City of Dayton v. Pearson, 2d Dist. Montgomery No. 6842, 1981 WL 2744, *2 (Apr. 1, 1981), citing State v. Nabozny, 54 Ohio St. 2d 195, 214, 375 N.E.2d 784 (1978). Here, Mother does not say what additional facts the social worker’s testimony would have supported and whether those facts would be material, so we cannot say that counsel was unreasonable not to subpoena the social worker. Compare In re Z.S., 4th Dist. Lawrence No. 10CA16, 2010-Ohio-5038, ¶ 35 (finding that the mother provided “absolutely nothing other than the bare speculation that her attorney could have, and should have, called more witnesses and cross-examined the guardian ad litem,” and that the mother provided “no evidence that the outcome of the proceedings would have been different had [her] trial counsel called these unnamed witnesses or asked these unstated questions”); In re N.H., 9th Dist. Summit No. 24355, 2008-Ohio-6617, ¶ 27 (“The father has maintained that his trial lawyer was ineffective for failing to ensure that his therapist testified at the permanent custody hearing, but he has not explained what her testimony would have been, nor has he demonstrated that her testimony would have
{¶ 34} Mother finally contends that counsel’s stipulation to the GAL report was improper. She says that the GAL should have been required to testify and be subject to cross-examination. As we found earlier, the GAL did testify and was cross-examined. And as we discussed, the GAL’s written report was required to be submitted by statute, making counsel’s stipulation to its admission irrelevant.
{¶ 35} Mother fails to show that counsel’s performance was in any way deficient or prejudicial.
{¶ 36} The third assignment of error is overruled.
{¶ 37} Having overruled each of the assignments of error presented, the juvenile court’s judgment is affirmed.
. . . . . . . . . . . . .FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
Ryan A. Saunders
Richard L. Kaplan
D.W., Sr.
S.F.
Hon. Joseph N. Monnin