In re M. M.
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Scott T. Coon, for appellant.
Paul A. Dobson, Wood County Prosecuting Attorney, and Charles S. Bergman, Assistant Prosecuting Attorney, for appellee.
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SINGER, J.
{¶ 1} Appellant appeals the judgment of the Wood County Court of Common Pleas, Juvenile Division, terminating her parental rights to two children and granting permanent custody to a children‘s services agency. For the reasons that follow, we affirm.
{¶ 3} The deputy would later testify that appellant‘s home was clean and well kept, but that he also immediately noticed a strong odor of burnt marijuana upon entry. When appellant concluded her interview with the caseworker, the deputy inquired about the smell of marijuana. Appellant admitted that she had been smoking in her bedroom and eventually produced a small quantity of marijuana and a pipe. The deputy cited appellant for drug abuse and paraphernalia possession.
{¶ 4} On August 15, 2006, appellee filed a complaint with the trial court, alleging that appellant‘s children, a four-year-old H. and a three-year-old M., were dependent due to her present use of drugs. Appellee alleged that such drug use was in conformance with appellant‘s behavior in Michigan that resulted in the termination of her parental rights for other children.
{¶ 5} On September 13, 2006, appellant stipulated to the facts of the complaint and an adjudication of dependency for the children. The two children were adjudicated dependent. Appellee was directed to provide protective services. Appellant was ordered to submit to random drug screens, complete diagnostic assessment and abide by the recommendations resulting from the assessment.
{¶ 7} At the end of February, appellant was back in Ohio and present at a review hearing, following which the court continued custody of the children with appellee and ordered appellant to drug and alcohol counseling. By the end of March, custody of the children was returned to appellant, who was again ordered to substance abuse treatment.
{¶ 8} Appellee again sought custody of the children and an emergency pickup order in July 2007, after appellant again tested positive for cocaine. The court granted appellee‘s request. Shortly thereafter, appellee learned that appellant had been arrested in Louisiana. Appellee sent representatives to Louisiana to return the children to Ohio. The children were placed in foster care.
{¶ 9} From the record, it is difficult to glean the exact order and timing of events, but it appears that over the next year appellant was incarcerated for one offense or another in Michigan, Louisiana and Mississippi. On September 12, 2008, appellee moved to terminate appellant‘s parental rights and requested that it be awarded permanent custody of the children.
{¶ 10} The matter was originally set for hearing on November 14, 2008, but the court granted a continuance due to appellant‘s incarceration in Mississippi. The hearing
{¶ 11} At trial, appellee presented testimony concerning the events which first brought appellant‘s family to appellee‘s attention. Appellee also introduced evidence that appellant‘s parental rights in four children had previously been terminated in Michigan for much the same reasons as alleged here: chronic drug use for which appellant will not or cannot engage in treatment. Appellee also presented an enumeration of the 21 locations of appellant‘s residences (including three incarcerations) between July 2006, and December 2008.
{¶ 12} Although appellant was not present at the termination hearing, her counsel cross-examined witnesses and in the end argued that, notwithstanding appellant‘s marijuana use, she was providing her children with a clean and safe environment when appellee intervened. Indeed, counsel argued, there was a lack of evidence showing in any way that her drug abuse negatively impacted the children.
{¶ 13} Upon submission, the court, in a 17 page judgment, found that appellee had proven by clear and convincing evidence that (1) notwithstanding reasonable efforts by appellee, appellant had failed to remedy the condition which caused the children to be removed from her home (
{¶ 14} On these findings, the court concluded that the children cannot now, nor within a reasonable time, be reunited with their mother and it was in their best interests that permanent custody be awarded to appellee.
{¶ 15} From this judgment, appellant now brings this appeal, setting forth the following three assignments of error:
{¶ 16} “I. The trial court erred in failing to grant appellant‘s motion to continue the permanent custody hearing to accommodate her appearance at the hearing.
{¶ 17} “II. Appellant was denied effective assistance of counsel due to the fact that her trial counsel did not attempt to secure her testimony by deposition
{¶ 18} “III. The trial court erred in granting permanent custody of the appellant‘s children to the state of Ohio.”
{¶ 19} Appellant first directs our attention to our own characterization of the permanent termination of a parent‘s parental rights as the, “* * * family law equivalent to the death penalty in a criminal case,” in which “[t]he parties to such an action must be afforded every procedural and substantive protection the law allows.” In re Smith (1991), 77 Ohio App.3d 1, 16. Indeed, we have observed that “[t]he parent/child relationship possesses a unique sanctity in our culture and in our law.” In re Sean B., 170 Ohio App.3d 557, 563, 2007-Ohio-1189, ¶ 28, citing In re Stacey S. (1999), 136 Ohio App.3d 503, 511, 1999-Ohio-989.
{¶ 20} “The right of a family to remain intact obtains constitutional protection. Stanley v. Illinois, (1972) 405 U.S. 645 at 651. Therefore, on review, judicial decisions to terminate parental rights receive careful scrutiny and the permanent removal of a child from his or her family may be condoned, ‘* * * only where there is demonstrated an incapacity on the part of the parent to provide adequate parental care, not [because] better parental care * * * can be provided by foster parents or adoptive parents * * *.’ In re Lay (1987), 43 Ohio App.3d 78, 82; see, also, In re William S. (1996), 75 Ohio St.3d 95, 97, 1996-Ohio-182;
{¶ 21} “Before any court may consider whether a child‘s best interests may be served by permanent removal from his or her family, there first must be a demonstration that the parents are ‘unfit.’ Quilloin v. Walcott (1978), 434 U.S. 246, 255; see, also, In re Schoeppner (1976), 46 Ohio St.2d 21, 24.” In re Sean B. at ¶ 29-30.
{¶ 22} The Ohio equivalent of parental unfitness for a child that is not orphaned or abandoned is a determination that the child cannot be placed with either parent within a reasonable time or should not be placed with the parents.
I. Denial of Continuance.
{¶ 23} In her first assignment of error, appellant argues that the trial court erred when it refused to grant her motion for a continuance for the dispositional hearing. Appellant was incarcerated in Mississippi at that time and asserts that the court‘s decision prevented her from being present to aid in her own interests at the termination hearing.
{¶ 24} The standard of review for the denial of a motion for continuance is whether the trial court abused its discretion. State v. Unger (1981), 67 Ohio St.2d 65, syllabus. An abuse of discretion is more than an error of law; it implies an attitude by the trial court that is arbitrary, capricious, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 25} In its decision on the motion for a continuance, the trial court noted that it had already granted several continuances and that appellant could not relate with any certainty when she would be released from custody so as to be available to attend the hearing. Moreover, the court noted that another continuance might potentially move the
{¶ 26} With respect to appellant‘s argument that her absence constituted a denial of her right to due process, the trial court noted that an incarcerated parent‘s right to be present at a permanent custody hearing is not absolute. The court cited In re C. M., 9th Dist. App. Nos. 23606, 23608, 23629, 2007-Ohio-3999, ¶ 14.
{¶ 27} According to the C. M. court, “* * * in evaluating the due process right of an incarcerated parent to be present at a permanent custody hearing, Ohio courts have looked to the test established by the United States Supreme Court in Mathews v. Eldridge (1976), 424 U.S. 319, 335. See, e.g., In re Gray (December 22, 1999), 9th Dist. Nos. 99CA0014, 99CA0015; In re Sprague (1996), 113 Ohio App. 3d 274, 276. In Mathews, the court recognized that ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands,’ and established a three-part test by which to determine what process may be due in a particular case. Mathews, 424 U.S. at 334-35 (quoting Morrissey v. Brewer (1972), 408 U.S. 471, 481. Pursuant to Mathews, the [parent‘s] due process right to be present at a permanent custody hearing is determined by balancing: (1) the private interest affected; (2) the risk of erroneous deprivation and the probable value of additional safeguards; and (3) the governmental burden of additional procedural requirements. Mathews, 424 U.S. at 335.” Id.
{¶ 29} Considering the court‘s analysis in view of the Mathews standards, we must concur that appellant was not deprived of any right to due process in this matter. Accordingly, appellant‘s first assignment of error is not well-taken.
II. Effective Assistance of Counsel
{¶ 30} Appellant maintains in her second assignment of error that she was deprived of effective assistance of counsel because counsel failed to obtain and present at trial her deposition.
{¶ 31} Although a statutory proceeding for a termination of parental rights is essentially a civil matter, because a party to such a proceeding is entitled to counsel, it follows that the party is entitled to effective counsel. Jones v. Lucas Cty. Children Services Bd. (1988), 46 Ohio App.3d 85, 86. To show that a party was denied effective assistance of counsel, the party must first show that counsel‘s performance was deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
{¶ 32} Scrutiny of counsel‘s performance must be deferential. Strickland v. Washington at 689. In Ohio, a properly licensed attorney is presumed competent and the burden of proving ineffectiveness is the appellant‘s. State v. Smith, supra. Counsel‘s actions which “might be considered sound trial strategy,” are presumed effective. Strickland v. Washington at 687. “Prejudice” exists only when the lawyer‘s performance renders the result of the trial unreliable or the proceeding unfair. Id. Appellant must show that there exists a reasonable probability that a different verdict would have been returned but for counsel‘s deficiencies. See id. at 694. See, also, State v. Lott (1990), 51 Ohio St.3d 160, for Ohio‘s adoption of the Strickland test.
{¶ 33} Appellant‘s principal complaint about the performance of her trial counsel is that he did not make arrangements for her to testify at the permanent custody hearing by deposition or an equivalent method. Appellant insists that during such testimony she would have been afforded an opportunity to explain the circumstances concerning her counseling and to explain the facts underlying the criminal charges against her. In support of this proposition, appellant cites In re Kessler (May 12, 1999), 3d Dist. No. 14-98-48, 49; In re Davis (Mar. 30, 1995), 10th Dist. No. 94APFO8-1205; and In re D.P., 8th Dist. Nos. 86271, 86272, 2006-Ohio-937.
{¶ 35} All of the cases appellant cites hold that an incarcerated parent has no absolute right to be present during a permanent custody hearing. Although the cases also permit such an incarcerated parent to present testimony by deposition or affidavit, appellant has directed us to no authority that requires this. Ultimately, whether to offer this kind of testimonial alternative is one of those trial decisions that rests in the discretion of counsel in formulating trial strategy. As such, it is presumed effective. Strickland at 687. Accordingly, appellant‘s second assignment of error is not well-taken.
III. Manifest Weight
{¶ 36} In her last assignment of error, appellant maintains that there was insufficient evidence before the court by which it could have concluded that she was an unfit parent. Indeed, appellant contends the only evidence of her ability to make a home for the children came from the deputy sheriff who arrested her for drug possession.
{¶ 37} Appellant essentially argues that the trial court‘s judgment was against the manifest weight of the evidence. Since all findings in a termination of parental rights proceeding must be supported by clear and convincing evidence, a court‘s decision to terminate a parent‘s parental rights must be affirmed if the record contains competent, credible evidence by which the court could have formed a firm belief that the essential statutory elements for a termination of parental rights have been established. In re Alexis Kaye K., 160 Ohio App.3d 32, 2005-Ohio-1380, ¶ 26; Cross v. Ledford, supra, paragraph three of the syllabus.
{¶ 38} In this matter, the trial court found that the children could not be placed with either of their parents within a reasonable time or should not be placed with either parent. The court supported this conclusion with predicate findings under
{¶ 40} The version of
{¶ 41} “(E) * * * If the court determines, by clear and convincing evidence * * * that one or more of the following exist as to each of the child‘s parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent:
{¶ 42} “(1) Following the placement of the child outside the child‘s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child‘s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.
{¶ 44} “* * *
{¶ 45} “(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child;
{¶ 46} “* * *
{¶ 47} “(13) The parent is repeatedly incarcerated, and the repeated incarceration prevents the parent from providing care for the child.
{¶ 48} “* * *
{¶ 49} “(16) Any other factor the court considers relevant.”
{¶ 50} Interestingly, the trial court chose to include appellant‘s prior Michigan termination of parental rights under the
{¶ 52} Given this evidence, we cannot say that any of the trial court‘s findings was unsupported by evidence by which the court could have found that predicate proven by clear and convincing evidence. The children were removed because of appellant‘s drug use and flight. The evidence clearly shows that this was a condition that appellant had not remedied by the time of the final hearing and it is undisputed that appellee provided diligent efforts to help her accomplish that remedy.
{¶ 53} Appellant‘s behavior in Michigan and in Ohio certainly suggests that she is chronically drug dependent, unwilling to remedy that dependency and her ability to provide an adequate permanent home for her children is undermined by this condition. Her failure to engage in treatment similarly demonstrates an unwillingness to provide an adequate home.
{¶ 55} Consequently, we conclude that there was sufficient evidence presented at the dispositional hearing by which the trial court could have properly found that appellant cannot now, nor with a reasonable time, be reunited with her children and she should not be reunited with them. Accordingly, appellant‘s third assignment of error is not well taken.
{¶ 56} On consideration whereof, the judgment of the Wood County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court costs of this appeal, pursuant to App.R. 24.
JUDGMENT AFFIRMED.
Peter M. Handwork, J. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.