IN RE: R.M., ET AL. Minоr Children [Appeal By Ramon M., Father]
Nos. 99809, 99810, and 99811
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 7, 2013
2013-Ohio-4928
BEFORE: Celebrezze, P.J., S. Gallagher, J., and McCormack, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-09905894, AD-09905896, and AD-09905897 JUDGMENT: AFFIRMED
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Michelle A. Myers
Assistant Prosecuting Attorney
Cuyahoga County Department of Children and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144
GUARDIAN AD LITEM
Carla Golubovic
P.O. Box 29127
Parma, Ohio 44129
{¶1} Appellant, Ramon M. (“father“), father of the three children involved in this consolidated appeal, challenges the trial court‘s grant of permanent custody to the Cuyahoga County Department of Children аnd Family Services (“CCDCFS“). Father asserts the trial court‘s decision is not supported by competent, credible evidence, and he was denied effective assistance of counsel. After a thorough review of the record and law, we affirm.
I. Factual and Procedural History
{¶2} In early 2009, CCDCFS filed for protective supervision of three children, R.M., N.H., and J.H., who were in the care of their mother, T.H. (“mother“). CCDCFS took temporary custody of the children on August 10, 2010, after mother demonstrated significant and troubling behavioral issues. The three children were placed together in a foster home, and a guardian ad litem (“GAL“) was appointed. Mother did not progress on her case plan and eventually stopped visiting her children.
{¶3} Father‘s paternity was established on May 3, 2011, according to CCDCFS records. Prior to that, he had not participated in the children‘s case рlan. That is not surprising considering mother told him he was not the father of any of the children. CCDCFS developed a case plan for father, which included maintaining “a lifestyle free of mood altering chemicals” with drug testing to ensure compliance, securing appropriate housing and employment or other financial resources to care for the children,
{¶4} Mother did not progress on her case plan throughout the period of temporary custody. She continued to test рositive for drugs or refused to provide samples. She was confrontational and abusive toward case workers and the children. The children were diagnosed with post-traumatic stress disorder and adjustment disorders. They exhibited highly sexualized behavior atypical for children of such young age.
{¶5} As a result of father‘s addition to the case, CCDCFS twice moved for and received extensions of temporary custоdy to give father the opportunity to work toward attaining custody of the children. An updated GAL report was submitted to the court on September 2, 2011. Throughout this time, the CCDCFS status reports indicated father was visiting the children regularly and was attempting to remedy certain deficiencies to become a suitable caregiver for the children. However, the April 6, 2012 CCDCFS review indicates father tested negative for drugs but stopped providing samples in December 2011. A hair follicle test was sought in March 2012, but father did not provide a sample. The June 22, 2012 CCDCFS case plan review indicated father tested positive for cocaine in April 2012 after the court ordered him to provide a sample. Later case plan reviews also indicated father did not complete a substance abuse assessment and would not submit to further drug testing. The July case review also indicates that
(1) The children have been in agency custody for two years (August 10, 2010) and they are in need of permanency. (2) Reunification with mother is not possible * * * (4) Fаther is reportedly not in a position to assume full responsibility of his children. He lacks income and independent housing. He currently resides with his adult daughter and mother, but his daughter is unwilling to have the children reside with them. (5) Father‘s hair sample in April 2012 revealed that he was positive for cocaine. He denies using cocaine and he has not made an appointment for a reassessment. He has not provided a urine screen since 5-4-12, which was negative. (6) The [social worker] has explored relatives and there are not any willing or able to assume care of the children. * * *.
{¶6} On July 19, 2012, CCDCFS filed for permanent custody. A hearing was set for January 3, 2013. The GAL filed a report on that date where she recommended permanent custody in favor of CCDCFS. A hearing was held where social worker Deanna Shuster testified, but a decision was delayed until after the results of father‘s social security disability benefits hearing. On February 20, 2013, the parties reconvened, and father‘s attorney indicated the court should make its decision with no further evidence when specifically asked about the benefits hearing. The implication is that father was again denied social security benefits. The court granted CCDCFS‘s motion for permanent custody, and father appealed assigning two errors:
- I. The termination of [Father‘s] parental rights and the award of permanent custody to CCDCFS was against the manifest weight of the evidence and constitutes a denial of due process of law.
Fourteenth Amendment, Constitution of the United States ;Article I, § 16, Constitution of the State of Ohio . II. [Father] received ineffective assistance of counsel in violation of his rights under the Sixth andFourteenth Amendments to the Constitution of the United States andArticle I, Section 16, of the Constitution of the Stаte of Ohio .
II. Law and Analysis
A. Permanent Custody
{¶7}
{¶8} Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence’ but not to the extent of such certainty required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987).
{¶9} In spite of the gravity that the termination of parental rights has, “our review is deferential. If some competent, credible evidence going to all the essential elements of the case supports the trial court‘s judgment, an appellate court must affirm the judgment
{¶10} Thus, we must look to the entire record to determine whether the trial court had sufficient evidence to clearly and convincingly find that it was in the children‘s best interest to be placed in the permanent custody of CCDCFS and that they could not or should not be placed with father within a reasonable periоd of time. After a thorough review of the evidence, we conclude that the trial court‘s judgment was based on sufficient evidence.
{¶11} All three children were in the custody of CCDCFS for over 12 consecutive months. Therefore, permanent custody may be granted under
i. Best Interest Determination
{¶12} In determining the best interest of the child during a permanent custody hearing, the court must consider the factors listed in
{¶13}
{¶14} Here, the court indicated it considered all of these factors and stated that it determined that the GAL recommended permanent custody to CCDCFS. Also, the record supports findings that the custodial history of the children indicates a need for permanent custody because the children have been in CCDCFS‘s custody for more than two consecutive years.
{¶15}
(a) The court determines by clear and convincing evidence that one or more of the factors in division (E) of this section exist and the child cannot be placed with one of the child‘s parents within a reasonable time or should not be placed with either parent. - (b) The child has been in an agency‘s custody for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of section 2151.415 of the Revised Code.
- (c) The child does not meet the requirements for a planned permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised Code.
- (d) Prior to the dispositional hearing, no relative or other interested person has filed, or has been identified in, a motion for legal custody of the child.
{¶16}
{¶17}
(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 thе 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, psychiаtric, 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.
(2) Chronic mental illness, chronic emotional illness, mental retardation, physical disability, or chemical dependency of thе parent that is so severe that it makes the parent unable to provide an adequate permanent home for the child at the present time and, as anticipated, within one year after the court holds the hearing pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
* * *
(4) The parent has demonstrated a lack of commitment toward the child by fаiling 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;
* * *
(14) The parent for any reason is unwilling to provide food, clothing, shelter, and other basic necessities for the child or to prevent the child from suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.
* * *
(16) Any other factor the court considers relevant.
{¶18} The court need only find that one of these circumstances is supported by clear and convincing evidence to justify the conclusion that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent. In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56. Here, there is substantial evidence in the record going to each of the first four factors set forth above.
{¶19} Pursuant to
{¶20} The testimony at trial from social worker Shuster indicated father initially complied with regular drug screening. However, after December 2011, father ceased providing samples with the exception of a May 2012 sample. A hair test was ordered in April 2012, which resulted in a positive test for cocaine. Father gave one more urine sample in May 2012, but did not provide any furthеr samples. Father also did not complete a substance abuse reassessment recommended after the positive drug test.
{¶21} Father did not secure adequate housing by the hearing date. In July 2012, he told Shuster he had secured a home, but it needed to be remodeled. Whenever housing was discussed, he always stated it was a few weeks to a month away from being livable. However, his housing status had not changed since that time, and he never provided Shuster with a moving date or made the property available for inspection. Father also had not secured employment or other financial means to care for the children.
{¶22} According to
{¶23} The children in this case do not meet the parameters of a planned permanent living arrangement as set forth in
{¶24} Finally, no suitable relative filed a motion for legal custody. Shuster discussed the paternal grandmother as a possible placement alternative during trial, but she did not have adequate housing and did not file a motion for legal custody.
{¶25} Therefore, according to
{¶26} Father argues that the record indicates he progressed on his case plan, attended substantially all of his scheduled visits, and maintained a strong relationship with the children. He asserts that the award of permanent custоdy is against the manifest weight of the evidence. However, ”
{¶27} Father did take steps to address issues outlined in the case plan, but the record supports the conclusion that he failed to seсure adequate housing and a source of income to support the children or to take advantage of programs set up by CCDCFS that would equip him with the tools to care for children with significant behavioral and
B. Ineffective Assistance of Counsel
{¶28} Father argues that his counsel failed to effectively represent him in this matter, depriving him of a constitutionally guaranteed right.
{¶29} To establish ineffective assistance of counsel, an appellant must demonstrate that the lawyer‘s performance fell below an objective standard of reasonable performance and that he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986). An appellant must show that, but for the lawyer‘s deficient performance, the outcome of the hearing would have been different. Id.
{¶30} An attorney is assumed to perform his duties ethically and competently. State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976). In addition, we will not second guess strategic decisions of trial counsel, at least insofar as they are reasonable. Strickland at 689; State v. Hughbanks, 1st Dist. Hamilton No. C-980595, 1999 Ohio App. LEXIS 5789 (Dec. 3, 1999).
{¶31} Father attacks the pеrformance of trial counsel. He claims that a short opening and closing statement, failure to call father as a witness, and failure to highlight the children‘s paternal grandmother as a possible relative willing to take custody of them constitute deficient performance.
{¶33} The allegation that there were other suitable family members who would take custody is also contradicted in the record. Father argues that the paternal grandmother indicated a desire to take custody of the children. However, this was disсussed during Shuster‘s testimony. The grandmother initially indicated a willingness to take the children, but she did not have adequate housing, and she did not follow through by filing a motion for legal custody.
{¶34} Even if appellant could satisfy the first prong of the test here, the second prong of the Strickland test cannot be met. Father points to the GAL‘s statements made
III. Conclusion
{¶35} Father failed to adequately address significant portions of his case plan, including securing a means to support the children, providing adequate housing, and a lack of dependence on substances of abuse. The trial court‘s award of permanent custody to CCDCFS was supported by clear and cоnvincing evidence. Trial counsel was also not constitutionally ineffective.
{¶36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
TIM McCORMACK, J., CONCUR