{¶ 3} The case proceeded to an adjudication hearing where the magistrate adjudicated T.F. a dependent child. At the final disposition hearing, the magistrate awarded temporary custody of T.F., effective March 17, 2006, to Helen Greeno, T.F.'s grandmother, with FS having protective supervision. The court adopted the magistrate's findings and orders, including the finding that Robertson had no contact with T.F. and was in prison. Robertson did not appear at any of the hearings.
{¶ 4} Later, FS alleged that Helen Greeno could no longer care for T.F. The magistrate held a shelter care hearing on June 12, 2006, and ordered temporary custody of T.F. to FS. The court adopted the magistrate's order on June 16, 2006. *3
{¶ 5} On June 26, 2006, FS filed a motion for permanent custody. On July
11, 2006, Mother permanently surrendered her parental rights to T.F.
{¶ 6} On September 17, 2006, the court held a hearing on the motion.
Robertson again did not appear. In its entry, the court stated, "[Robertson] was duly served with the Motion for Permanent Custody and Notice of this hearing by certified mail on June 29, 2007. Father did not appear nor did he seek appointment of counsel on his behalf. He did not seek an order for transportation to the court for the permanent custody hearing." The court further stated, "[Robertson] sent a letter to the court on June 22, 2006 expressing a desire to gain custody of his son upon discharge [from incarceration], [but] no further communications with the court or the child have occurred since that time." The court additionally found, inter alia, "by clear and convincing [evidence] that reasonable efforts have been made to eliminate the necessity of the removal of [the child] from the custody of his parents * * *" and that Robertson's "repeated and frequent incarceration prevents him from providing care for [the child]." Finally, the court ordered that T.F. be committed to the permanent custody of FS.
{¶ 7} Robertson appeals the trial court's judgment and asserts the following four assignments of error: I. "THE TRIAL COURT ERRED IN FINDING THAT THE CHILD COULD NOT BE PLACED WITH ONE OF THE CHILD'S PARENTS WITHIN A REASONABLE TIME OR SHOULD NOT BE PLACED WITH EITHER PARENT." II. "THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS UNDER THE
{¶ 9} A trial court may grant the agency's motion for permanent custody if it determines by clear and convincing evidence that: (1) one of the four conditions outlined in R.C.
{¶ 11} A parent's "interest in the care, custody, and control of their children `is perhaps the oldest of the fundamental liberty interests * * *.'" In re D.A.,
{¶ 12} Here, the record shows that FS served Robertson with the complaint alleging T.F. to be a neglected and dependent child and requesting a grant of temporary custody by "posting and mail" as provided for in Juv.R. 16. Further, Robertson received service of the motion for permanent custody and notice of hearing at the Noble Correctional Institution by certified mail on June 29, 2007. An agent of Robertson at the prison apparently signed the certified mail receipt. So, such service was properly made on Robertson. See Leman v.Fryman, Hamilton App. No. C-010056,
{¶ 13} Robertson maintains, however, that the trial court erred by failing to transport him from prison to any of the proceedings before the court. However, the record does not indicate that Robertson ever requested transportation to any of the hearings. We find that the trial court did not violate Robertson's due process right to be present at the hearings and to be heard because Robertson *7 failed to seek transportation after he was properly served with all the notices of the hearings. See In re DP. at ¶¶ 21-24.
{¶ 14} Robertson further claims that he had a right to an attorney, and that the court failed to appoint an attorney to represent him.
{¶ 15} Ohio courts hold that where a parent is provided notice of his or her "right to counsel, but fails to pursue it, [the parent] has not been denied [the] statutory right to counsel." In re Williams, Franklin App. No. 03AP-1007,
{¶ 16} Here, the summons served via posting specifically stated:
1. You are entitled to a lawyer in all proceedings in juvenile court. The court will appoint a lawyer or designate a county public defender or joint county public defender to provide legal representation if you cannot afford a lawyer and meet certain requirements.
2. Elieen Kester who may be reached at telephone number (740) 474-3117 Monday through Friday between the hours of 8:00 AM and 4:00 PM, is the employee designated by the court to arrange for the prompt appointment of counsel for indigent persons. If you wish to be represented by a lawyer in this proceeding but believe you cannot afford one, you should contact this person as soon as possi[b]le.
Therefore, Robertson was provided notice of his right to an attorney during the proceedings, but he never availed himself of that right. Consequently, we find that Robertson was not denied his due process right to counsel.
{¶ 17} Accordingly, we overrule Robertson's second assignment of error.
{¶ 19} An award of permanent custody must be supported by clear and convincing evidence. In re Hiatt (1993),
{¶ 20} We will not reverse the judgment of the trial court when some competent, credible evidence supports the trial court's findings. In reMarano, Athens App. No. 04CA30,
in R.C.
{¶ 22} As we stated earlier, a trial court may grant the agency's motion for permanent custody if it determines by clear and convincing evidence that: (1) one of the four conditions outlined in R.C.
(a) The child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999, and the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999.
{¶ 23} Here, the trial court granted FS's motion for permanent custody after it found by clear and convincing evidence that: (1) the condition in R.C.
{¶ 24} Accordingly, we overrule Robertson's first assignment of error.
{¶ 26} R.C.
*11(1) The 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;
(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child;
(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999;
(4) The 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;
(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.
{¶ 27} Here, the court found that T.F. "has an excellent relationship with his foster parents." The evidence shows that Robertson was not involved in T.F.'s life and that T.F. was developing remarkably in the care of his current foster caregivers. Further, the court found that T.F. had "made tremendous physical and mental strides since being place[d] in foster care[.]" The court stated,
[A]fter being placed in foster care with [FS], the child has significantly matured and thrived. Upon initial placement with foster care, the child had serious ear infections and delays in communication skills. After placement in foster care, tubes were placed in his ears in August, 2006 and his current physical condition is very good. Through services provided by the "Help Me Grow" program and the commitment and dedication of the foster parents, according to the testimony of the "Help Me Grow" staff member, [T.F.] has made a complete turnaround and has graduated at age-level. This is in complete contrast to his entrance into the program where it was determined that he was untestable.
The court also found that, in foster care, T.F. was able to remain with his brother, "with whom he enjoys a close sibling relationship."
{¶ 28} The court further considered the custodial history of T.F., including the fact that, during the course of T.F.'s life, Mother had "moved from home to home with the child and on numerous occasions would drop off the child to various friends and family leaving no medications or diapers." The court noted that FS became involved with the child in January 2006 and discussed T.F.'s custody situation since FS's involvement in the child's life. In addition, the court determined that T.F. was "in need of a legally secure permanent placement due to his need for close custodial supervision which cannot be achieved without a grant of permanent custody." *12
{¶ 29} The record supports the trial court's summary of the evidence. Thus, we find that competent, credible evidence supports the trial court's "best interest" finding, i.e., that permanent custody was in the best interest of the child. {¶ 30} Accordingly, we overrule Robertson's third assignment of error.
{¶ 32} As we stated earlier, even though a "reasonable efforts" finding under R.C.
{¶ 33} Here, FS became involved in T.F.'s life in January 2006. The caseworker from FS admitted that FS never placed Robertson on any case plan because of Robertson's incarceration. The case worker did not know where Robertson lived at the time but learned at some point before June 12, 2006 that he was incarcerated and left a message for Robertson the day before the shelter care hearing in June 2006. Between August 2006 and the time of the permanent custody hearings, the caseworker had at least seven conversations with *13 Robertson explaining the nature of the proceedings, the fact that Robertson could obtain counsel, and the likelihood that FS would seek permanent custody of the child. The caseworker stated that Robertson never made any effort that suggested that he wished to participate in T.F's life. Instead, Robertson requested that the caseworker contact his parents to determine if they had any desire to care for the child. Neither of Robertson's parents expressed any such desire. Therefore, based on the above record, we find that competent, credible evidence supports the trial court's finding that FS made reasonable efforts to reunite Robertson with his child.
{¶ 34} In addition, courts have recognized an implied exception to the "reasonable efforts" finding "when case planning efforts would be futile." In re Keaton, Ross App. Nos. 04CA2785, 04CA2788,
{¶ 35} In In re Norris (Dec. 12, 2000), Athens App. Nos. 00CA38, 00CA41,
{¶ 36} Here, Robertson was incarcerated during the entire pendency of this action. FS did not know his exact whereabouts until June of 2006 when a FS's caseworker left a message for Robertson concerning the shelter care hearing. Once after FS left a message with Robertson in June 2006, he sent a letter to the court expressing his desire to father the child. After August 2006, Robertson spoke with FS at least seven times. This evidence shows that FS did not completely ignore Robertson. However, despite FS's communication with Robertson, he never made any effort to add his name to a case plan, appear in the pending custody action or make any effort to be a part of T.F.'s life. Therefore, we find that the above record is competent, credible evidence, which supports a conclusion that any efforts by FS at reunification would have been futile. Consequently, any failure by FS to make reasonable efforts at reunifying the family was not error. *15
{¶ 37} Accordingly, we overrule Robertson's fourth assignment of error. Having overruled all four of Robertson's assignments of error, we affirm the judgment of the trial court.
*16JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County 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 for the Rules of Appellate Procedure. Exceptions.
*1Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.