In re M.C.
Robert M. Johnson, Portsmouth, Ohio, for appellant.
David M. Huddleston, New Boston, Ohio, for appellee.
Harsha, J.
{1} Nicole Blackburn and Jason Campbell are the parents of three minor children, M.C., A.C., and J.C. After the trial court adjudicated the children to be dependent, the Scioto County Children Services Board (“board“), filed a motion for permanent custody. The trial court conducted a hearing on the motion and granted it.
{2} Blackburn initially asserts that the trial court failed to comply with the
{4} Therefore, we affirm the judgment of the trial court awarding permanent custody of the children to the board.
I. FACTS
{5} After Blackburn and Campbell went to prison for their convictions for child endangerment, their children were placed in the home of their paternal aunt and her son. In November 2014, the board filed a complaint in the Scioto County Court of Common Pleas, Juvenile Division requesting temporary custody because the children were allegedly abused and dependent. The trial court granted temporary emergency custody of the children to the board. In March 2015, by agreement of the parties, the trial court adjudicated the children to be dependent and continued the award of temporary custody of the children to the board.
{6} In August 2015, the board filed a motion for permanent custody of the children. The board noted that Blackburn and Campbell were in prison for child endangerment of their children, that they had prior child endangerment convictions regarding the two older children, and that they were not due for release from prison until April 2017. The trial court scheduled a hearing on the motion for October 1, 2015. On September 30, the day before the scheduled hearing, Lois Rhea, the paternal grandmother of the children, filed a petition for custody of the children.
{8} Following the hearing the trial court entered a judgment on March 30, 2016 awarding permanent custody of the children to the board. The trial court found that both parents had been convicted of twice committing abuse against their two older children and once committing abuse against their youngest child, that the likelihood of recurrence created a significant threat to the children‘s safety, and that due to their incarceration, the parents could not begin to repair their relationships with the children for quite some time. The court determined that it was in the best interests of the children to grant permanent custody to the board.
II. ASSIGNMENTS OF ERROR
{9} Blackburn assigns the following errors for our review:
- THE TRIAL COURT FAILED TO COMPLY WITH
O.R.C. 2151.414(A)(2) BY NOT HOLDING THE PERMANENT CUSTODY HEARING WITHIN 120 DAYS OF THE FILING OF THE MOTION FOR PERMANENT CUSTODY AND BY NOT ISSUING AN ORDER REGARDING PERMANENT CUSTODY WITHIN 200 DAYS OF THE FILING OF THE MOTION FOR PERMANENT CUSTODY, THEREBY DEPRIVING APPELLANT OF DUE PROCESS. - THE ACTS OR OMISSIONS OF TRIAL COUNSEL FOR APPELLANT DEPRIVED HER OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
III. LAW AND ANALYSIS
A. R.C. 2151.414(A)(2) Time Periods
{11}
The court shall hold the hearing scheduled pursuant to division (A)(1) of this section not later than one hundred twenty days after the agency files the motion for permanent custody, except that, for good cause shown, the court may continue the hearing for a reasonable period of time beyond the one-hundred-twenty-day deadline. The court shall issue an order that grants, denies, or otherwise disposes of the motion for permanent custody, and journalize the order, not later than two hundred days after the agency files the motion.
***
The failure of the court to comply with the time periods set forth in division (A)(2) of this section does not affect the authority of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.
{12}
{13} Nevertheless,
{14} Moreover, even assuming that the trial court erred in continuing the hearings on the board‘s motion for permanent custody and in ruling on the motion,
{15} Because these time limits are directory rather than mandatory, the remedy for a party aggrieved by a judge‘s delay in conducting a hearing and ruling on a motion for permanent custody is to petition an appellate court for a writ of procedendo to compel action; a failure to do so constitutes a waiver of the issue for purposes of appeal. M.W., 2012-Ohio-5075, at ¶ 22; see also In re M.G., 5th Dist. Richland No. 16CA18, 2016-Ohio-5256, ¶ 37. Blackburn did not seek a writ of procedendo or object to any alleged delay by the trial court, nor did she raise a due process challenge below. Thus, despite her attempt to frame her appeal in constitutional terms, she forfeited that issue on appeal. Moreover, the availability of the procedendo remedy adequately protects her due process rights. See, e.g., In re K.H., 5th Dist. Licking No. 13-CA-100, 2014-Ohio-1594, ¶ 17.
{16} Blackburn has not established a violation of
B. Ineffective Assistance of Counsel
{18} “‘The right to counsel, guaranteed in permanent custody proceedings by
{19} The appellant must establish that counsel‘s performance was deficient and that the deficient performance prejudiced the defense so as to deprive the appellant of a fair trial. See K.M.D. at ¶ 61. Deficient performance is performance falling below an objective standard of reasonable representation, and prejudice is a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. See, e.g., State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{20} Blackburn argues that her trial counsel‘s performance was deficient because counsel failed to object to the trial court‘s purported noncompliance with
{21} Notably, Blackburn and Campbell, the children‘s parents, requested the first continuance of the trial court‘s hearing to give the guardian ad litem and the board time to investigate the petition for custody of the children filed by Campbell‘s mother. And the second continuance was necessitated by the absence of Campbell from the hearing. Instead of prejudicing Blackburn‘s case, the additional time gave her and Campbell more time to prepare for the permanent-custody proceeding. See M.G., 2016-Ohio-5256, at ¶ 38 (“The additional time involved in the instant case allowed for a full consideration of all the evidence presented, and appellant has not demonstrated that the result of the proceeding would have been different had trial counsel filed a writ to force an earlier hearing and decision“).
{22} Blackburn has not met her burden of proving that her trial counsel was ineffective for failing to object to the court‘s purported noncompliance with
IV. CONCLUSION
{23} The trial court‘s permanent-custody award was not invalidated by any claimed failure to comply with the time requirements of
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ______________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.