In re N.L.T.
Dated: February 6, 2015
BELFANCE, Presiding Judge.
{¶1} Appellant Linda McCune (“Mother“) appeals from the judgment of the Lorain County Court of Common Pleas, Probate Division, which overruled Mother‘s objections to the magistrate‘s decision and concluded that Mother‘s consent to the adoption of her biological daughter, N.L.T., was not necessary. For the reasons set forth below, we affirm.
I.
{¶2} N.L.T. was born July 28, 2010, to Mother and Todd Young (“Father“), who were not married. Petitioner-Appellee Natalie Trachsel is Father‘s aunt and N.L.T.‘s great aunt. Ms. Trachsel obtained temporary custody of N.L.T. in April 2012, and legal custody on June 14, 2012, following Mother and Father‘s incarceration and failure to comply with their case plans. Both Mother and Father suffered from substance abuse problems.
{¶3} On June 25, 2013, Ms. Trachsel filed a petition to adopt N.L.T. She asserted that neither Mother nor Father‘s consent was necessary beсause both parents failed without justifiable
{¶4} Prior to the hearing before a magistrate, Mother‘s counsel filed a motion to transport Mother from prison to the heаring. The trial court subsequently denied the motion. Mother‘s counsel objected to Mother‘s absence at the hearing but did not present any witnesses on Mother‘s behalf. Also, Mother‘s counsel never sought to try and produce Mother‘s testimony via alternate means or methods.
{¶5} The magistrate concluded that Ms. Trachsel did not establish by clear and convincing evidence that Mother failed without justifiable cause to provide fоr the maintenance and support of N.L.T. for the year prior to the filing of the petition but did conclude that the evidence established that Mother failed without justifiable cause to provide more than de minimis contact with N.L.T. for the year prior to the filing of the petition.
{¶6} Mother filed objections to the magistrate‘s decision, which the trial court thereafter overruled and concluded that Mother‘s consent to the adoption of N.L.T. was not necessary pursuant to
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO TRANSPORT MOTHER FOR THE HEARING UPON REQUEST OF HER COUNSEL OR OTHERWISE ORDER MOTHER TO PARTICIPATE BY ALTERNATIVE METHODS.
MOTHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HER TRIAL ATTORNEY DID NOT REQUEST ALTERNATIVE METHODS FOR MOTHER‘S PARTICIPATION.
{¶7} Mother asserts in her first assignment of error that the trial court erred in denying her request to transport her from prison to the hearing and erred in failing to order her to participate by alternate means. Mother asserts in her second assignment of error that trial counsel was ineffective in failing to rеquest that Mother participate by alternate means. As these assignments of error are related and were addressed together in Mother‘s brief, they will be addressed similarly here.
Failure to Transport
{¶8} “The United States Supreme Court has determined that parents have a fundamental liberty interest in the care, custody, and management of their children.” In re C.M., 9th Dist. Summit Nos. 23606, 23608, 23629, 2007-Ohio-3999, ¶ 14, citing Santosky v. Kramer, 455 U.S. 745, 753 (1982). In the context of permanent custody cases, this Court has stated that “Ohio courts have recognized that parents have a constitutionally protected right to be present at permanent custody hearings, but that this right is not absolute if the parent is incarcerated.” In re C.M. at ¶ 14. “[I]n 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, 424 U.S. 319, 335 (1976).” In re C.M. at ¶ 14. Under that test, the incarcerated person‘s right to be present at the 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.” Id.; see also In re Adoption of B.J.M., 42 Kan.App.2d 77, 84 (2009) (applying Mathews in an
{¶9} On appeal, Mother has presented a very limited argument. The record reflects that Mother‘s counsel was present and participated in the hearing. Mother does not arguе that she lacked representation by counsel at the hearing, that a full record of the proceedings was not made, or that the testimony she wished to present could not have been offered by deposition. See id. Instead, she appears to assert that there was no order authorizing her deposition to be taken at the prison and that such violated her rights. She has cited no law for this proposition. See
{¶10} In light of Mother‘s limited argument on appeal, her first assignment of error is overruled.
{¶11} Mother asserts in her second assignment of error that trial counsel was ineffective in failing to request alternate means for her participation at the hearing. As noted above, parents have a fundamental liberty interest in the care, custody and management of their children. See In re C.M., 2007-Ohio-3999, at ¶ 14. Assuming without deсiding that a claim of ineffective assistance of counsel is applicable in a private adoption case, Mother has not met her burden. See In re Forfeiture of Property of Rhodes, 2d Dist. Montgomery No. 25464, 2013-Ohio-3046, ¶ 12 (noting that “[t]here can be no separate constitutional right to effective assistance of counsel when the basic right to counsel has not attached[]“) (Internal quotations and citation omitted.); see also In re Adoption of M.C., 4th Dist. Jackson Nos. 11CA5, 11CA6, 2011-Ohio-6527, ¶ 8 (noting that the Supreme Court of Ohio has not аddressed whether an indigent parent contesting a private party adoption has a procedural due process based right to appointed counsel).
{¶12} The test for ineffective assistance of counsel “requires a demonstration that counsel‘s performance fell below an objective standard of reasonable representation and that the client has suffered prejudice.” In re C.M. at ¶ 27. “A deficiеnt performance is one that fell below an objective standard of reasonableness. [Whereas t]o establish prejudice, the [mother] must show that there is a reasonable possibility that, but for counsel‘s errors, the result of the proceeding would have been different.” (Internal quotations and citations omitted.) In re N.H., 9th Dist. Summit No. 24355, 2008-Ohio-6617, ¶ 26. Even assuming that Mother could establish that her counsel‘s performance was deficient, there is nothing in the record establishing what evidence Mother would present via alternate means nor is there any suggestion that that evidence would establish Mother was justified in failing to have more than de minimis contact with N.L.T. or that she had more than de minimis contact with N.L.T. See
{¶13} Further, we note that there was ample evidence in the record of the lack of contact Mother had with N.L.T. and there was evidence that there were occasions for her to have contact with her child. In light of that evidence, and the lack of evidence in the record as to the nature or substance of Mother‘s testimony, we overrule Mother‘s second assignment of error.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DETERMINED THAT MOTHER‘S CONSENT IS NOT NECESSARY FOR HER CHILD TO BE ADOPTED.
{¶14} Mother argues in her third assignment of error that the trial court erred in concluding that Mоther‘s consent was not required for the adoption of N.L.T.
{¶15}
the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judiciаl decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner.
{¶16} Because
{¶17} The instant appeal only involves whether Mother, without justifiable cause, failed to provide more than de minimis contact with N.L.T. for at least the year prior to June 25, 2013. The probatе court‘s determination that Mother failed to provide more than de minimis contact with N.L.T. is reviewed for an abuse of discretion. See In re Adoption of M.B., 131 Ohio St.3d 186, 2012-Ohio-236, paragraph two of the syllabus; see In re Adoption of J.R.H., 2d Dist. Clark No. 2013-CA-29, 2013-Ohio-3385, ¶ 25-28 (discussing the application of the standard in In re Adoption of M.B. to de minimis contact situations as well as failure to support cases). Whether justifiable cause has been proven by clear and convincing evidence is a separate issue the determination of which will only be reversed on appeal if it is against the manifest weight of the evidence. See In re Adoption of M.B. at paragraph two of the syllabus; In re Adoption of J.R.H. at ¶ 25-28.
{¶19} The term “contact” is not defined in the statute; however, the dictionary defines it as, inter alia, “an establishing of communication with someone or an observing or receiving of a significant signal from a person or object.” Merriam-Webster‘s Collegiate Dictionary 268 (11th Ed.2005). The question before this Court is whether the trial court erred in concluding Mother‘s аctions did not constitute more than de minimis contact with N.L.T.
{¶20} Ms. Trachsel testified that, after she was made aware that N.L.T. had been taken into the custody of Summit County Children Services, she sought to obtain temporary custody of N.L.T., which she did in April 2012. In June 2012, Ms. Trachsel was granted legal custody of N.L.T. As part of the order granting legal custody, Mother and Father were allowed reasonable visitation with N.L.T. Ms. Trachsel requested only that the visitations be supеrvised due to Mother and Father‘s ongoing substance abuse issues.
{¶21} During the one-year period, Mother was in and out of jail and community based correctional facilities. Mother was arrested in June 2012, for the illegal manufacture of methamphetamine. She was in jail until August 14, 2012, whereupon she was released pending sentencing. On August 28, 2012, Mother failed to appear in court and a warrant was issued. Mother was arrested on September 17, 2012, and was in jail until November 28, 2012. From that
{¶22} Ms. Trachsel lived in Sheffield Village but traveled to Akron every weekend to help take care of her ailing father. She would always bring N.L.T. with her and testified that Mother could have visited any of the weekends that she was at her father‘s. During the relevant time period, her father lived with Ms. Trachsel‘s sister and Father. After Ms. Trachsel‘s father passed away on February 3, 2013, Ms. Trachsel continued to visit thе Akron home to prepare it for use as a rental unit. Ms. Trachsel indicated that Mother never once came to visit N.L.T. at Ms. Trachsel‘s father‘s house during the relevant period.
{¶23} Ms. Trachsel‘s sister (Father‘s mother) testified that she did not remember Mother coming to her father‘s home during the period at issue, although Mother did call. However, when Mother would call, she would want to speak to Father and did not ask about seeing N.L.T. Fathеr confirmed that Mother never came to Ms. Trachsel‘s father‘s house during the relevant period. Father testified that, sometimes, while Mother was at a community based correctional facility, Mother would call, tell him she was out on a pass, and ask him to meet her somewhere. Father indicated that Mother would ask to do that as opposed to visiting with him and N.L.T. at Ms. Trachsel‘s father‘s house. Father stated that Mother could hаve visited N.L.T. during the time she had passes because the location of Ms. Trachsel‘s father‘s house was near the location
{¶24} A witness who knew both Ms. Trachsel and Father testified that she saw Mother and Father together at a restaurant in Akron around October or November 2012. It was the witness’ understanding that Mother was in a rеhabilitation facility at the time and so was surprised to see her at a restaurant drinking what she believed to be an alcoholic beverage. The witness additionally indicated that she would see N.L.T. every weekend at Ms. Trachsel‘s father‘s house and during the relevant period she never saw Mother there.
{¶25} Ms. Trachsel‘s mother testified that Mother knew how to get in contact with her and would see Mother occasionally. Even thоugh they were divorced, Ms. Trachsel‘s mother visited Ms. Trachsel‘s father‘s house approximately twice a month on the weekends while Ms. Trachsel‘s father was very ill. According to Ms. Trachsel‘s mother, Mother did not come over while she was there and when she called, she never asked about N.L.T. According to Ms. Trachsel, the last time Mother visited with N.L.T. was March 2012. Ms. Trachsel denied that she ever told anyone that Mother could not visit and stаted she did not receive letters that were purportedly sent to N.L.T. by Mother.
{¶26} Nonetheless, Ms. Trachsel testified that Mother “contacted [Ms. Trachsel] and left [her] a handful of messages on [her] cell phone during this period of June 2012 to June 2013. When [Mother] did leave a message, she would ask how [N.L.T.] was. [Ms. Trachsel] would return [Mother‘s] call to [the community based correctional facility where Mother was staying] and [Ms. Trachsel] would let thеm know.” Mother, however, would never ask to visit N.L.T.
{¶27} In March 2013, Ms. Trachsel attempted to increase contact with Mother. Ms. Trachsel asked Mother to put her on the visitors’ list to discuss Mother‘s interest in maintaining a
{¶28} Mother argues that the phone calls to Ms. Trachsel asking about N.L.T.‘s well-being amount to contact with N.L.T. and, because there were multiple instances of Mother calling, there was more than de minimis contact. Mother maintains that, because N.L.T. was only two years old during the relevant time frame, Mother‘s level of contact was reasonable under the circumstances.
{¶29} In this case, there was no evidence that, during the one-year period, Mother visited with N.L.T., spoke to her, or sent hеr any gifts, pictures, or letters. Mother argues that N.L.T. was too young to speak to on the phone; however, this fact would go to whether Mother‘s failure to talk to N.L.T. was justified, not to whether Mother had contact with N.L.T. It is difficult for this Court to conclude that Mother‘s actions amount to any contact with N.L.T. See In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 15-16 (concluding that, where evidence supported trial court‘s finding that mother did not “‘see, speak with, or correspond with R.L.H.’ during the one-year time period[,]” the issue became whether the record established that mother‘s lack of contact was not justified). Based on the entirety of the record, we cannot say that the trial court abused its discretion in overruling Mother‘s objection and concluding that Mother failed without justifiable cause to have more than de minimis contact with N.L.T. during the relevant period.
{¶30} Moreover, we cannot say that the trial cоurt‘s conclusion that Mother‘s lack of contact was not justifiable was against the manifest weight of the evidence. While there was evidence that, while Mother was in and out of jail and community based correctional facilities during the year, there was also evidence that Mother had passes which allowed to her visit
{¶31} In addressing the prior version of the statute, the Supreme Court has stated that “significant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent‘s failure to communicate with the child.” In re Adoption of Holcomb, 18 Ohio St.3d at 367-368. The record before us does not contain evidence that Ms. Trachsel interfered with any attempts by Mother to make contact with N.L.T.
{¶32} Accordingly, we overrule Mother‘s third assignment of error.
III.
{¶33} In light of the foregoing, we overrule Mother‘s assignments of error and affirm the judgment of the Lorain County Court of Common Pleas, Probate Division.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
MOORE, J. CONCURS.
CARR, J. DISSENTING.
{¶34} The law clearly acknowledges that parents have a constitutional right to be present at a permanent custody proceeding. Even though incarcerated, mother was still guaranteed the due process right to “meaningfully participate” in the adoption hearing below either by being physically transported or at least having her testimony presented in some form, such as by deposition. “[C]ounsel had a duty to protect her (Mother‘s) rights, and the trial court was responsible for the basic integrity of the proceedings herein.” In re Roque, 11th Dist. Trumbull No. 2005-T-0138, 2006-Ohio-7007, ¶ 20. Neither was done here. Under these circumstances, Mother‘s due process rights were violated. I would reverse and remand for a new hearing.
DENISE FERGUSON, Attorney at Law, for Appellant.
SUSAN K. PRITCHARD, Attorney at Law, for Appellee.
TODD YOUNG, pro se, Appellee.