In re W.T.
Rendered on the 9th day of October, 2009.
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JENNIFER HORNER, Atty. Reg. No. 0079768, 130 W. Second Street, Suite 1600, Dayton, Ohio 45402
Attorney for Defendant-Appellant
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of L.T., filed April 28, 2009. L.T. appeals from the judgment of the Montgomery County Court of Common Pleas, Juvenile Division, overruling her objections to the magistrate‘s decision and granting permanent custody of her daughter, W.T., to the Montgomery County Department of Job and Family Services - Children Services Division
{¶ 2} On May 5, 2006, the Agency filed a Dependency and Neglect Complaint which provided in part, [t]he Agency believes that [W.T.] is Dependent and Neglected because Mother has allowed illegal drug activity to occur in the home. The Dayton Police were called out to Mother‘s home and found drug activity in the presence of this child. There was very little food in the home. The home was in an unsanitary condition, and there was drug residue in the kitchen. Mother was in the home while the drug activity was occurring. When the police arrived, Mother was arrested on an outstanding warrant for a traffic violation and child endangering. On May 4, 2006, there was an officer acceptance of this child. At this time, Mother is incarcerated at Montgomery County Jail. * * * . W.T.‘s two older siblings were also removed from the home and placed with relatives. W.T. was placed in a foster home.
{¶ 3} On May 11, 2006, following a hearing, the juvenile court issued an Order of Interim Temporary Custody, and a Guardian ad Litem (GAL) was appointed for W.T. On August 23, 2006, following an adjudication and dispositional hearing, the juvenile court terminated the interim order and granted the Agency temporary custody of W.T.
{¶ 4} The Agency developed a case plan with the aim of reuniting W.T. with L.T. Pursuant to the plan, L.T. was to maintain a clean and appropriate home; not allow drugs in her home; complete a drug and alcohol assessment and sign all releases and complete all recommendations; obtain counseling for depression, and sign all releases and complete all recommendations. The case plan provided that
{¶ 5} The initial semi-annual administrative review of L.T.‘s progress on her case plan was conducted on October 20, 2006, and W.T.‘s placement in foster care was continued because L.T. has not addressed case plan concerns. She has lost her housing and is non-compliant with probation and this agency.
{¶ 6} On March 12, 2007, the Agency filed a motion and memorandum for permanent custody, or in the alternative, an extension of temporary custody. Attached to the motion is the affidavit of an Agency caseworker which provides in part: Permanent custody is in the child‘s best interest because: Mother has made little progress on her case plan objectives and the Agency does not anticipate Mother will be able to adequately provide for the child‘s basic needs in the future. Mother was unemployed for approximately one year; however, Mother reports she is scheduled to start employment on March 9, 2007. Mother‘s history has demonstrated she has been unable to maintain steady employment. Mother also has been unable to maintain stable housing. Until recently, the Agency was unable to visit Mother‘s home because she was reluctant to disclose her address. Mother reported her previous home had structural problems that required repairs. Mother relocated this month and disclosed a current address to the Agency. The Agency referred Mother to CAM to complete substance abuse and mental health assessments. After numerous missed appointments, Mother completed a substance abuse and mental health assessment at crisis care. Mother was then referred to Daymont for treatment to address substance abuse and mental health issues. Mother is currently in group counseling to address these issues. Mother
{¶ 7} On March 30, 2007, the GAL filed a report recommending that the Agency be granted permanent custody of W.T. The report provides that W.T. is doing well in foster care and that her foster parents are considering adopting her. The report further provides that L.T. wanted W.T. to stay in a familiar environment. She told CASA that she does not want [W.T.] to grow up without any family. She said that she takes full responsibility for not following through on her case plan.
{¶ 8} On April 27, 2007, a second semi-annual review was conducted by the Agency. The review form notes that L.T. failed to make significant progress in addressing case plan concerns. The Agency also noted that L.T. has a new residence that has not been viewed by the Agency. At the time of a scheduled visit on April 27, 2007, L.T. did not allow her caseworker to visit her when she was residing with friends after being evicted from DMHA housing. The review further indicates that L.T. was diagnosed with depression, and after being referred to Daymont‘s dual diagnosis program for substance abuse and mental health, L.T. has not been consistently involved with Daymont and her case was recently closed after she failed to attend for 90 days. The review further provides that L.T. missed as many as three or more visits with W.T.
{¶ 9} On May 31, 2007, the Magistrate granted a first extension of temporary custody, and on September 18, 2007, the Agency filed a motion and
{¶ 10} On September 18, 2007, a third semi-annual review was conducted. The review form notes that L.T. is incarcerated in Indiana and has been uninvolved with the Agency during the majority of the reporting period.
{¶ 11} On January 8, 2008, the Agency filed a motion for permanent custody. The attached caseworker‘s affidavit provides in part that L.T. has been incarcerated since July 2007. Even prior to that, her visitation was inconsistent. It was reduced from twice a week to once a week at mother‘s request. Then, even when reduced, she was sporadic in her visits. Alleged father is deceased.
{¶ 12} On February 27, 2008, a second extension of temporary custody was granted.
{¶ 13} On March 26, 2008, a fourth semi-annual review was conducted by the Agency, and the summary notes, L.T. [r]emains incarcerated in Indiana and has never addressed plan concerns even prior to being jailed. On July 10, 2008, the GAL filed a report that provides that the GAL attempted to contact mother recently at Theodora House in Indianapolis and requested a return call but none has been received. The GAL filed a report recommending that permanent custody of W.T. be granted to the Agency for the purpose of adoption.
{¶ 14} Following a hearing before the magistrate on July 14, 2008, at which Sherrie Spence, L.T.‘s caseworker, and L.T. testified, permanent custody of W.T.
{¶ 15} According to Spence, L.T. understood her case plan objectives, but she failed to meet them. L.T. arrived in Dayton the night before the hearing, and she did not have stable housing or income at the time. Spence indicated that L.T. would have to be reevaluated for mental health and substance abuse problems, because there was no documentation that W.T. completed any programs to address those issues. Spence concluded that reunification was not possible in the foreseeable future. Spence summarized by noting that the Agency provided the following services to L.T.: information and referral, case management, and foster care.
{¶ 16} The record reflects that L.T. pled guilty to a shoplifting charge, and she received a two year sentence, with one year suspended. L.T. admitted her record contains prior arrests and convictions for shoplifting.
{¶ 17} L.T. testified that she planned to move into the Highland Apartments on the upcoming weekend, and that she was staying with her mother until then. She stated that she worked for five months in a work release program in Indiana, and that she has leads for available jobs in the Dayton area. L.T. maintained she
{¶ 18} When questioned about W.T.‘s best interests, L.T. stated, * * * I am mature enough to know that if I can‘t handle W.T. or handle the responsibilities of being a mother to my kids, I will give her up for adoption. I will give her - - gladly give her back. L.T. acknowledged that she does not have custody of her other children.
{¶ 19} The magistrate determined in part that L.T.‘s case plan objectives were not met in that L.T. lacked stable income and housing and also failed to provide verification of treatment for mental health and substance abuse issues. The magistrate‘s conclusions of law provide in part, [m]uch was made of the mother‘s inability to work on case plan objectives for the past 12 months, and how likely it would be that she would become a suitable custodian in the coming 3 to 6 months. The Court observes that the mother had a year to work on case plan objectives before she became incarcerated, but she failed to even maintain regular contact with the child during that time. She also had the ability during the past 12 months to maintain very regular contact with Montgomery County Children Services, as evidenced by her very regular contact with her attorney during the pendency of this motion, but she failed to do so. She also failed to arrange for her endeavors while incarcerated to be confirmed or to be communicated to Montgomery County Children Services by her treatment providers.
{¶ 20} On August 20, 2008, L.T. filed objections to the Magistrate‘s decision. On September 8, 2008, a fifth semi-annual review was conducted by the Agency resulting in findings consistent with previous reviews.
{¶ 22} On February 23, 2009, the Agency conducted a semi-annual case review, noting in part that L.T. is again incarcerated and without income and stable housing.
{¶ 23} On April 3, 2009, the juvenile court overruled L.T.‘s objections, granting custody of W.T. to the Agency. The juvenile court‘s decision provides in part: * * * the Court may grant permanent custody to the agency that filed the motion if it is in the best interest of the child to grant permanent custody to the agency, and one of four conditions listed in the statute also apply.
{¶ 24} In the present case, the evidence shows said child has been in the custody [of the Agency] since May 5, 2006, and the Agency did not file for permanent custody until January 8, 2008. Accordingly, the Court finds that the child was in the custody of the Agency for a period longer than twelve months of a consecutive twenty-two month period prior to the Agency‘s filing of the motion for permanent custody. Therefore, the condition set forth in
{¶ 25} The juvenile court then analyzed, pursuant to
{¶ 26} The juvenile court next considered W.T.‘s best interest. It was important to the trial court that L.T.‘s contact with W.T. before her incarceration was sporadic, and that L.T. had not seen W.T. in the last year due to her incarceration. The trial court further noted that W.T. has no bond with her siblings, but yet is very bonded with the foster family, and the foster family has the intent to adopt said child. The court noted that W.T. was too young to express her opinion.
{¶ 27} The court also considered Agency custody to be in W.T.‘s best interest, weighing the fact that W.T. had been in Agency custody for a period longer than 12 of 22 months. Additionally, the court considered W.T.‘s need for permanent placement, noting, the evidence shows said child would not be able to be placed with [L.T.] in a reasonable time, and therefore, permanency can only be accomplished by granting permanent custody of said child to the Agency.
{¶ 28} Finally, the trial court concluded that L.T. abandoned W.T. pursuant to
{¶ 30} THE TERMINATION OF LEGAL CUSTODY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 31} The United States Supreme Court has recognized that parents’ interest in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Court. Troxell v. Granville (2000), 520 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49. In re M.S. & D.S., Clark App. No. 2008 CA 70, 2009-Ohio-3123, ¶15.
{¶ 32} In a proceeding for the termination of parental rights, all of the court‘s findings must be supported by clear and convincing evidence.
{¶ 33}
{¶ 34} (B)(1) * * * the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:
{¶ 35} (a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public services agencies * * * for twelve or more months of a consecutive twenty-two-month period * * * , 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.
{¶ 36} * *
{¶ 37} (d) The child has been in the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two-month period * * * .
{¶ 38} In determining whether a child can be placed with either parent within a reasonable time, a trial court must comply with
{¶ 39} (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 the 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, psychiatric, 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.
{¶ 40} * * *
{¶ 41} (4) The parent had demonstrated a lack of commitment toward the child by failing 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.
{¶ 42} * * *
{¶ 43} (10) The parent has abandoned the child.
{¶ 45} Upon thorough review of all of the record, we conclude that the Agency presented clear and convincing evidence that granting custody to the Agency was in W.T.‘s best interest. Since W.T. had been in the temporary custody of the Agency for more than 12 months of a consecutive twenty-two month period,
{¶ 46} Regarding W.T.‘s best interest, pursuant to
{¶ 47} We find that the juvenile court considered all relevant factors in determining W.T.‘s best interest, and the record contains competent, credible evidence upon which the court concluded that the essential statutory elements for a termination of parental rights had been established. Since the juvenile court‘s decision is supported by sufficient evidence and is not against the manifest weight of the evidence, L.T.‘s first assignment of error is overruled.
{¶ 49} [L.T.]‘S ATTORNEY WAS INEFFECTIVE BY NOT REQUESTING A CONTINUANCE OF THE PERMANENT CUSTODY HEARING.
{¶ 50} We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel. (Internal citation omitted). State v. Mitchell, Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 51} L.T. argues, if her attorney had requested a continuance on her behalf, perhaps she could have established a job, a residence, and been able to provide the Court with documentation regarding her counseling and treatment she had received. (Emphasis added). L.T. has not identified what evidence she would have offered had counsel moved for and obtained a continuance, and her
BROGAN, J. and GRADY, J., concur.
Copies mailed to:
Carley J. Ingram
Jennifer Horner
Hon. Nick Kuntz