In re S.D.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Laura M. DiGiacomo, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee).
Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor, OH 44060 (Guardian ad Litem).
DIANE V. GRENDELL, J.
OPINION
{¶1} Appellant, Kyle Leonard, appeals from the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, grаnting permanent custody of his children, P.D.-L. and C.D., to appellee, the Ashtabula County Children Services Board (ACCSB). The issues to be determined in this case are whether the trial court erred in finding it was in the best interest of the children to grant permanent custody to ACCSB when their father did not have adequate housing or employment and whether trial counsel was ineffective in failing to file a motion for legal custody under such
{¶2} Leonard is the biological father of C.D., born July 26, 2012, as was established through a paternity test. Leonard also signed the birth certificate of P.D.-L., born November 17, 2010, although no paternity test was taken. Stephanie Davis is their biological mother. The two are not presently married or in a relationship.
{¶3} On February 28, 2012, an ex parte emergency order granted temporary custody of S.D., P.D., and P.D.-L. to ACCSB.1
{¶4} On February 29, 2012, ACCSB filed a Complaint for Temporаry Custody, alleging that the children were neglected. The Complaint asserted that the children, living with their mother, lacked proper parental care and that “the family home was in horrendous condition and * * * is packed with trash and miscellaneous items.” The caseworker “observed the home to be in deplorable condition and unsafe for the children.” Further, the Complaint alleged that there had been cases regarding these same concerns in the past. As of that date, Leonard was also living in Davis’ home. Following a Shelter Care Hearing, on February 29, 2012, the children continued in the custody of ACCSB.
{¶5} A case plan was filed on March 15, 2012. It required that Leonard provide safe and sanitary housing for his child, P.D.-L.
{¶6} In a March 28, 2012 Magistrate‘s Decision, the children were found to be neglected, pursuant to
{¶8} A case plan filed on May 13, 2013, included C.D. and added the requirement that Leonard participate in a parenting evaluation with Dr. Fabian and complete parenting classes.
{¶9} On May 22, 2013, pursuant to the parties’ stipulation, C.D. was found to be an abused child, under
{¶10} ACCSB filed a Motion to Modify Temporary Custody to Permanent Custody on January 29, 2014.
{¶11} At the hearing on ACCSB‘s Motion on May 22, 2014, Leonard‘s counsel requested that the magistrate recuse herself due to Leonard‘s view that she was prejudiced, based on her presiding over a juvenile case when he was 16. This request was denied.
{¶12} Prior to the presentation of testimony, Davis agreed that ACCSB should be granted permanent custody of all four children and that all had been in the custody of ACCSB for 12 out of 22 consecutive months.
{¶13} Katie Balog, a visitation supervisor for Rooms to Grow, supervised visits between P.D.-L., C.D., and Leonard. She testified that over a period of two years, the visits were “sporadic” and there was a “long period of time” when Leonard did not come. He attended 3 visits from August 24, 2012, until visits were suspended after several consecutive cancellations by Leonard. From November 16, 2012, until June 21, 2013,
{¶14} Jennifer Mochoskay, an ACCSB caseworker, testified that there were brief periods of time when she could not get in contact with Leonard. None of Leonard‘s residences were deemed appropriate for the children, due to various issues including occupants with child endаngerment charges or ACCSB involvement. Mochoskay explained that the agency offered help regarding housing, which Leonard refused. Leonard never provided proof of employment, although he reported holding several jobs.
{¶15} According to Mochoskay, all four children were placed in a foster home on August 13, 2013, have remained in that home, and are doing “very well.” She testified that they should remain together. Mochoskay would not recommend reunification with Leonard because he has not shown he is capable of providing an appropriate home or having an adequate income to care for the children.
{¶16} The foster mother, who stays at home with the children while her husband works, testified that they were doing well. In the future, the foster parents would like to adopt all four children, who were bonded with them and each other.
{¶17} Leonard explained that, at the time P.D.-L. was taken from Davis’ home, he had been residing with her. He left her home due to a disagreement on hеr failure to clean and noted that the home was a health hazard, with mold and electrical problems.
{¶19} Regarding his case plan requirements, Leonard testified that he complied with the requirement to have an evaluation with the psychologist, Dr. Fabian, but did not have stable housing over the past five years and had not had adequate income. He has held several jobs during the past few years, including seasonal employment. Over the past two years, he had periods where he played “phone tag” with his caseworker but he had kept in contact.
{¶20} Leonard explained that he sees a psychiatrist and has “anxiety issues,” as well as several health problems, including “small respiratory issues.” A recent visit had been cancelled duе to a rash on his hand.
{¶21} Leonard testified that he would “push [his] body to the point where [he] break[s]” to take care of his children. He walked up to eight miles to attend visitation. Leonard believed that he should be reunified with the children, but he needs to find stable employment, which he is attempting to do, and to move. He admitted that he did not have suitable housing for the children at the time of the hearing.
{¶22} Leonard‘s wife, Krystal, testified that although she was not the mother of the two children, she would support Leonard and had expressed an interest in visiting with the children. She was working on obtaining support in paying for housing and gaining employment.
{¶23} The guardian ad litem, Eileen Noon Miller, did not believe Leonard would be in a position “at any reasonable time to be able to parent [the] children.” She
{¶24} In a June 19, 2014 Magistrate Decision, the magistrate found that the Motion for Permanent Custody was proven by clear and convincing evidence, noting that the children could not be placed with either parent within a reasonable time, and that Leonard had failed “continuously and repeatedly to substantially remedy the conditions” causing the children to be placed outside of their home. The magistrate also found that Leonard abandoned thе children, the children had been in the temporary custody of ACCSB for 12 months out of a consecutive 22 month period, that ACCSB had made reasonable efforts to finalize the permanency plan, and that the children‘s best interest was served by granting permanent custody to ACCSB. The magistrate addressed the best interest factors and found that the children were placed together in foster care, the GAL believed that it was in the best interest of the children to be placed in ACCSB‘s custody, and they needed a рermanent and legally secure placement.
{¶25} On June 25, 2014, Leonard filed Objections to Magistrate Decision, based on the lack of clear and convincing evidence to support the decision, which were overruled by the trial court on October 6, 2014.
{¶26} On the same date, the trial court issued a Judgment Entry, adopting the Magistrate Decision, and granting permanent custody of the children to ACCSB, for the same reasons outlined above.
{¶27} Leonard timely appeals and raises the following assignments оf error:
{¶29} “[2.] The appellant‘s due process rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution were violated by ineffective assistance of counsel.”
{¶30} “[P]arents who are suitable persons have a ‘paramount’ right to the custody of their minor children.” (Citations omitted.) In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). The “extreme disposition” of permanently terminating a parent‘s rights with respect to a child, however, “is nevertheless expressly sanctioned * * * when it is necessary for the ‘welfare’ of the child.” In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). “[T]he fundamental or primary inquiry at the dispositional phase of these juvenile proceedings is not whether the parents * * * are either fit or unfit,” rather, it is “the best interests and welfare of that child [that] are of paramount importance.” (Emphasis sic.) Id. at 106.
{¶31} A trial court must apply
{¶32} “In determining the best interest of a child * * *, the court shall consider all relevant factors, including, but nоt limited to, * * * [t]he interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; * * * [t]he custodial history of the child * * *; [t]he child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency“; and whether any relevant factors in (E)(7) to (11) of this section apply.
{¶33} The trial court‘s determination regarding the best interest issue must be supported by clear and convincing evidence, which is “more than a mere preponderance of the evidence; it is evidence sufficient to produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-2449, ¶ 36.
{¶34} In his first assignment of error, Leonard raises various arguments in support of his contention that the court‘s decision was against the manifest weight of the evidence.
{¶35} In casеs involving the termination of parental rights, an appellate court applies the manifest weight of the evidence standard of review. In re B.R.C., 11th Dist. Portage Nos. 2013-P-0059 and 2013-P-0060, 2014-Ohio-69, ¶ 41. Weight of the evidence, in both civil and criminal cases, concerns “‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather
{¶36} “In undertaking this limited reweighing of the evidence, however, we are guided by the presumption that the factual findings of the trial court were correct.” Sparre [v. Ohio Dept. of Transp., 2013-Ohio-4153, 998 N.E.2d 883,] ¶ 12 [(10th Dist.)]. “Accordingly, the weight to be given the evidence and the credibility of the witnesses are primarily questions to be answered by the trier of fact.” Id., citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The rationale for this deference is the trier of fact is in the best position to view witnesses and observe their demeanor, voice inflections, and gestures. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Moreover, though sufficiency and manifest weight are different legal concepts, a finding that a judgment is supported by the manifest weight of the evidence necessarily includes a finding that sufficient evidence supports the judgment. * * * (Citations omitted.) In re M.J., 2nd Dist. Greene Nos. 2014-CA-32 and 2014-CA-33, 2015-Ohio-127, ¶ 35, citing In re C.G., 10th Dist. Franklin Nos. 13AP-632 and 13AP-653, 2014-Ohio-279, ¶ 32.
{¶38} Regarding P.D.-L., the trial court was not required to make the finding that she could be returned to Leonard in a reasonable period of time, since it properly found that she had been in the custody of ACCSB for more than 12 months of a consecutive 22 month period. In re B.R.C. at ¶ 54 (When the 12 of 22 months finding is made, “the court need not find that the child cannot оr should not be placed with either parent within a reasonable time as required by
{¶39} Regarding C.D., the court also found that he had been in ACCSB‘s custody for 12 of 22 months as of the date of the trial. ACCSB, however, filed its January 29, 2014 Motion to Modify Temporary Custody to Permanent Custody on the grounds that he could not be placed with еither parent for a reasonable time. At the time of the Motion, he had not been in the custody of ACCSB for 12 months, since emergency custody had been granted to ACCSB on April 22, 2013. As the Ohio Supreme Court has held, “the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period set forth in
{¶41} Next, Leonard argues that there was not clear and convincing evidence that he failed to remedy the conditions that caused his children to be placed with ACCSB. Specifically, he asserts that ACCSB had an unreasonable housing expectation and he had done what he was asked to do on the case plan, including having hоusing. Suitable housing was part of the reason the children were taken into ACCSB custody initially and it is entirely reasonable that ACCSB would require him to have stable housing. While working on the case plan, Leonard moved from house to house, staying with relatives and in temporary places. Mochoskay testified that the residences where he stayed were inappropriate for children, including ones with occupants who had child endangerment charges or ACCSB involvement. Leonard refused help in obtaining аppropriate housing. ACCSB had difficulty visiting several of the homes because he did not report his location. He did not establish a permanent home for the children and admitted at the hearing that his housing was inadequate. It cannot be said that it was
{¶42} Leonard also argues that the court erred in finding that he failed to show commitment to the children, since he visited them many times and reestablished contact after he did not see them for a period of time. Testimony established that Leonard visited on 15 of 35 opportunities. He also did not visit for a period of seven months in 2012-2013, leading to the court‘s finding that Leonard had “abandoned the children.” See
{¶43} Leonard also asserts that reasonable efforts were not made to help him with the case plan. Specifically, he argues that ACCSB did not provide services for his mental health issues.
{¶44} “In determining whether the agency made reasonable efforts [pursuant to
{¶45} In this case, ACCSB has been involved with P.D.-L. and C.D. for a majority of their lives. During this period, Leonard was provided with supervised visitation with the children, which he frequently missed, case supervision, help with obtaining rides to visitation, a parenting evaluation, and referrals for housing, which he refused. Such services were reasonable efforts at reunification. See In re S.P., 11th Dist. Lake Nos. 2011-L-032 and 2011-L-033, 2011-Ohio-3747, ¶ 73. It also does not appear that ACCSB had any indication that Leonard was in need of mental health services or that such services would be beneficial in reuniting him with the children.
{¶46} Leonard also asserts that his wife, the children‘s stepmother, was not allowed to attend visits. He fails to explain how this has any bearing on the outcome of this case. Even if she had been allowed to visit, Leonard‘s failure to comply with the case plan is the main basis for his inability to regain custody of the children.
{¶47} Finally, Leonard asserts that the court erred in finding that it was in the children‘s best interest to be placed in the permanent custody of ACCSB. He raises similar issues to those discussed above, noting that the housing problem would be remedied, emphasizing that he wanted to parent his children, and arguing that no serious problems existed, such as drug use.
{¶48} Given Leonard‘s inability to fully comply with the case plan, the lack of stable and adequate housing, his failure to retain a job that could support the children, the children‘s current living arrangement and relationship with their foster family, and the guardian ad litem‘s rеcommendation, it was not against the manifest weight of the evidence to find that, pursuant to
{¶49} The first assignment of error is without merit.
{¶50} In his second assignment of error, Leonard argues that his counsel was ineffective by failing to properly raise the issue of bias in a motion, rather than orally at the hearing, and by failing to file a motion for legal custody.
{¶51} “The test applied to evaluate a claim of ineffective assistance of counsel in a proceeding to terminate parental rights is the two-step test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.” In re L.M., 11th Dist. Ashtabula No. 2010-A-0058, 2011-Ohio-1585, ¶ 57. Accordingly, Leonard must demonstrate “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unrеliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 687-688.
{¶52} As to the issue of bias, regardless of whether counsel should have filed a motion prior to the hearing, it is unclear how this caused prejudice to Leonard. The
{¶53} A similar rationale applies to the contention regarding the failure to file a motion for legal custody, pursuant to
{¶54} While Leonard also argues that counsel was ineffective by failing to request a mental health element to the case plan, we again find no merit in this argument. Aside from a minor mention of “anxiety” issues at the hearing, he did not
{¶55} The second assignment of error is without merit.
{¶56} Based on the foregoing, the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, granting permanent custody of C.D. and P.D.-L. to ACCSB, is affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.