Lead Opinion
{¶ 3} Following a shelter care hearing, the trial court placed Cheyenne, Mitchell, and Matthew in the temporary custody of the department. On September 13, 2005, mother stipulated and the trial court found the children to be dependent and continued temporary custody with the department.
{¶ 4} The trial court approved and adopted mother's case plan, which included undergoing a psychological evaluation, attending Goodwill Parenting classes, and obtaining and maintaining stable employment and housing. The department filed a Motion for Permanent Custody on April 24, 2006. The trial court conducted a hearing on that motion on September 7, 2006.
{¶ 5} LaShawn Hye, the ongoing family service worker assigned to the case testified regarding mother's failure to remedy the initial concerns which caused the removal of the children from her home. Hye also testified mother had not seen the children since March, 2006, and was currently incarcerated, serving a four year sentence on a burglary conviction. The department presented and the trial court admitted a certified copy of mother's sentencing entry. The department requested the court find the children abandoned pursuant to R.C.
{¶ 6} The trial court proceeded to the best interest portion of the hearing. The department again called LaShawn Hye. Hye testified the children are caucasian and do not have significant physical or medical problems. Hye continued, however, the children do suffer some cognitive learning issues and developmental delays, and are *4 receiving services. The three children are currently placed together with a foster family, who are considering adoption. Matthew and Mitchell were making a positive transition and appeared to be doing well. Cheyenne was more resistant to the structure of the foster family's home. According to Hye, Cheyenne's therapist believes such behavior is the result of Cheyenne's fear of getting close to people. Cheyenne is also easily frustrated, which results in her behaving inappropriately. Cheyenne receives weekly counseling at the Children's Network.
{¶ 7} Hye stated he believed granting permanent custody of the children to the department was in the children's best interest as it will provide them with a chance for stability, which has always been a major issue for them. Hye added the children need an opportunity to thrive and should not have to worry about whether they have a roof over their heads or food on the table. Hye concluded mother had not been able to demonstrate the ability to provide the necessary stability to the children.
{¶ 8} In lieu of calling Dr. Cassie Hornbeck, Cheyenne's therapist, the doctor's report was admitted. The trial court asked the chidren's guardian ad litem if she had anything to add to her report. The guardian ad litem indicated her report summed up the situation "quite well."
{¶ 9} Via Findings of Fact and Conclusions of Law filed September 22, 2006, the trial court found Cheyenne, Matthew, and Mitchell could not or should not be placed with their mother in the foreseeable future, and it was in the children's best interest to grant permanent custody to the department. The trial court also found mother had abandoned the children. Via Judgment Entry also filed September 22, 2006, the trial *5 court terminated mother's parental rights, privileges and obligations, and granted permanent custody to the department.
{¶ 10} It is from this judgment entry and the trial court's findings of fact and conclusions of law mother appeals, raising the following assignments of error:
{¶ 11} "I. THE TRIAL COURT'S FINDING THAT APPELLANT ABANDONED HER CHILDREN WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE AND THE TRIAL COURT ERRED BY PROCEEDING TO BEST INTERESTS BASED UPON ABANDONMENT.
{¶ 12} "II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 13} "III. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS OF THE MINOR CHILD [SIC] WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
{¶ 14} This appeal is expedited and is being considered pursuant to App. R. 11.2(C).
{¶ 16} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, *6
competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. CE.Morris Co. v. Foley Constr. (1978),
{¶ 17} R.C.
{¶ 18} Following the hearing, R.C.
{¶ 19} Therefore, R.C.
{¶ 20} In the instant action, the trial court specifically found:
{¶ 21} "17. Cheyenne Scullion has been abandoned by Mother and Father (Datz) pursuant to ORC
{¶ 22} "18. Mitchell and Matthew Scullion have been abandoned by Mother and Father (Doyle) pursuant to ORC
{¶ 23} September 22, 2006 Findings of Fact and Conclusions of Law
{¶ 24} Under R.C.
{¶ 25} That statute reads:
{¶ 26} "For the purposes of this chapter, a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days."
{¶ 27} As set forth in the Statement of Case and Facts, supra, LaShawn Hye, the ongoing family case worker with the department, testified mother's last visit with the children was in March, 2006. The department filed its motion for permanent custody on April 24, 2006. Mother argues because 90 days had not passed between her last visit and the filing of the motion for permanent custody, the trial court's finding of abandonment was against the manifest weight and the sufficiency of the evidence. In *8
support of her position, mother relies upon In re: C.W.,
{¶ 28} In In re: C.W., the Ohio Supreme Court held:
{¶ 29} "[B]efore a public children-services agency or private child-placing agency can move for permanent custody of a child on R.C.
{¶ 30} The department concedes 90 days had not passed from the date of mother's last visit with the children to the date of the filing of the motion for permanent custody (April 24, 2006), but maintains the specific holding of In re: C.W. should be limited to the "12 of 22" provision. We agree with mother as the issue relates to the facts of the instant case. The logical extension of In re: C.W. requires a finding a parent has failed to visit or maintain contact with the child for a period of ninety days before an agency moves for permanent custody on abandonment grounds. Although the department did not allege abandonment per se as one of the grounds for moving for permanent custody, the department cited mother's failure to visit or maintain contact with the children as one of the reasons permanent custody ought to be granted. We recognize failure to visit or maintain contact with the children is a factor in considering whether the child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents (R.C.
{¶ 31} Although we agree with mother the trial court's finding of abandonment was not supported by the evidence, we find such error does not require reversal of the permanent custody determination under the two-issue rule. The trial court found an alternate, independent ground for terminating parental rights. The trial court found:
{¶ 32} "22. * * * Cheyenne Scullion, Mitchell Scullion and Matthew Scullion cannot and/or should not be placed with either parent at this time or in the foreseeable future." September 22, 2006 Findings of Fact and Conclusions of Law.
{¶ 33} Mother has not directly assigned error with this finding. Accordingly, we affirm the trial court's decision to proceed to the best interest portion of the hearing.
{¶ 34} Mother's first assignment of error is sustained in part and overruled in part.
{¶ 36} "The two-part test for ineffective assistance of counsel used in criminal cases, announced in Strickland v. Washington (1984),
{¶ 37} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley at 142,
{¶ 38} In order to warrant a reversal, the appellant must additionally show she was prejudiced by counsel's ineffectiveness. "Prejudice from defective representation *11
sufficient to justify reversal of a conviction exists only where the result of the trial was unreliable or the proceeding fundamentally unfair because of the performance of trial counsel." State v.Carter,
{¶ 39} Assuming, arguendo, trial counsel's performance fell below an objective standard of reasonable representation, we find mother cannot satisfy the second prong of the Strickland test. The record before this Court does not show mother's judicial release was anything more than a possibility. Furthermore, the trial court had as an exhibit a copy of the judgment entry of conviction which mentions the possibility of judicial release. As such, the fact was before the court even without questioning or statements from mother's counsel. We cannot conclude mother was prejudice by trial counsel's failure to ask questions or make statements regarding the upcoming judicial release hearing.
{¶ 40} Mother's second assignment of error is overruled.
{¶ 42} In determining the best interest of the child at a permanent custody hearing, R.C.
{¶ 43} LaShawn Hye testified the three siblings do not have any physical or medical problems. Although all three children were involved in counseling, Mitchell and Matthew had been terminated due to their improvements. Only Cheyenne continued involvement with a therapist. Hye stated the children were in a home interested in adopting the entire group. The twins were making a positive transition to the placement, but Cheyenne was experiencing some difficulty due to her emotional and psychological issues. The parties stipulated to the admission of the report of Casey Hornbeck of Northeast Ohio Behavioral Health, who conducted an assessment of the children. Hornbeck's report detailed the severe trauma and abuse the children suffered at the hands of mother. Hornbeck reported improvement in the children since their placement in foster care. The trial court also admitted the guardian ad litem's report, which recommended permanent custody of the children be granted to the department.
{¶ 44} Based upon the foregoing, and the entire record in this matter, we find the trial court's determination it was in the best interest of Cheyenne, Mitchell and Matthew to grant permanent custody to the department was not against the manifest weight or sufficiency of the evidence.
{¶ 45} Mother's third assignment of error is overruled. *13
{¶ 46} The judgment of the Stark County Court of Common Pleas, Juvenile Division, is affirmed.
*15Hoffman, J. Gwin, P.J. concurs, Edwards, J. concurs separately
Costs assessed to appellant.
Notes
Concurrence Opinion
{¶ 47} I concur with the majority as to its analysis and disposition of the first assignment of error.
{¶ 48} I write separately on the first assignment of error to correct the mistaken conclusion of appellant that abandonment can only be proven if there has been 90 days of no contact. That is not correct. While R.C. §
{¶ 49} I concur with the majority as to the analysis and disposition of the second and third assignments of error. *1