IN THE MATTER OF: Z.N.
Case No. 11-CA-0015
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 23, 2011
[Cite as In re Z.N., 2011-Ohio-3221.]
JUDGES: W. Scott Gwin, P.J. John W. Wise, J. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas, Juvenile Division, Case No. F2009-0814; JUDGMENT: Affirmed
For Plaintiff-Appellee
KENNETH W. OSWALT
Licking County Prosecutor
BY: JAMES D. MILLER
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Guardian ad Litem
RUTHELLEN WEAVER, ESQ.
542 South Drexel Avenue
Bexley, Ohio 43209
For Defendant-Appellant
ROBERT C. BANNERMAN, ESQ.
P.O. Box 77466
Columbus, Ohio 43207-0098
For Marcena Burnside
ROBIN LYN GREEN, ESQ.
33 West Main Street, Ste. 103
Newark, Ohio 43055
Edwards, J.
{¶1} Appellant, Zakery Neldon, appeals a judgment of the Licking County Common Pleas Court, Juvenile Division, awarding permanent custody of his daughter Z.N. to appellee Licking County Department of Job and Family Services (LCDJFS).
STATEMENT OF FACTS AND CASE
{¶2} Z.N. was born on November 25, 2009. On the same date, Z.N. was placed into the emergency shelter care of appellee and has resided in the same foster home from the time she was released from the hospital. On February 8, 2010, Z.N. was found to be dependent and placed in the temporary custody of the agency. Appellee moved for permanent custody of Z.N. on October 18, 2010. The case proceeded to trial on December 20, 2010 before a magistrate in the Licking County Common Pleas Court.
{¶3} Marcena Burnside is the mother of Z.N. She has been minimally employed and virtually homeless, losing multiple jobs because of poor job performance. At the time of the permanent custody hearing, she was living with her sister. She struggled to meet Z.N.‘s basic needs during visitation and had previously lost custody of her two older children.
{¶4} Appellant was incarcerated at the time of the hearing for assaulting a police officer. Although he did not have medical documentation, he claimed to have been diagnosed in the past as bipolar and schizophrenic. Following his conviction, he was expelled from a community-based correction facility and an in-patient treatment facility and thereafter ordered to serve his sentence in prison. He became incarcerated in September, 2010, and was due to be released in March, 2011. He testified that after
{¶5} The magistrate found that Z.N. should not be placed with appellant or her mother within a reasonable time, Z.N.‘s need for a permanently secure placement could not be achieved without granting permanent custody to the agency and the parents failed continuously and repeatedly to remedy the conditions which existed at the time of Z.N.‘s removal. The court found permanent custody to be in the best interest of Z.N. and awarded permanent custody to the appellee. Appellant failed to file objections to the magistrate‘s report.
{¶6} Appellant assigns two errors on appeal:
{¶7} “I. APPELLANT RECEIVE [SIC] INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
{¶8} “II. THE MAGISTRATE‘S DETERMINATION TO GRANT PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND/OR PLAIN ERROR.”
I
{¶9} In his first assignment of error, appellant argues counsel was ineffective for failing to file objections to the magistrate‘s decision, thereby hampering his ability to appeal.
{¶10} A properly licensed attorney is presumed competent. State v. Hamblin (1988), 37 Ohio St.3d 153, 524 N.E.2d 476. Therefore, in order to prevail on a claim of ineffective assistance of counsel, appellant must show counsel‘s performance fell below an objective standard of reasonable representation and but for counsel‘s error, the
{¶11}
{¶12} “(iv) Waiver of right to assign adoption by court as error on appeal. Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion whether or not specifically designated as a finding of fact or conclusion of law under
Juv.R. 40(D)(3)(a)(ii) , unless the party has objected to that finding or conclusion as required byJuv.R. 40(D)(3)(b) .”
{¶13} Appellant has not demonstrated that had he filed objections to the magistrate‘s report, the result of the proceeding would have been different. The evidence demonstrated that appellant had only seen Z.N. five times during her lifetime. He has been diagnosed with bipolar disorder and schizophrenia and prior to his incarceration did not take medication for his problems because he did not have insurance. He had a history of marijuana and drug use, and at one point told the caseworker he had a “God-given right” to smoke marijuana. He was incarcerated at the time of trial for assault on a police officer. He had been expelled from a community-based corrections facility due to conflicts with staff members, and was expelled from an in-patient substance abuse treatment facility when he walked away, causing his probation to be revoked and his prison sentence to be imposed.
{¶15} The evidence further demonstrated that Z.N. had been in the same foster home from birth and the foster parents wanted to adopt her.
{¶16} Appellant has not demonstrated that had counsel filed objections to the magistrate‘s report, the court would have denied the agency‘s permanent custody motion. The first assignment of error is overruled.
II
{¶17} In his second assignment of error, appellant argues that the decision of the court finding permanent custody to be in Z.N.‘s best interest is against the manifest weight of the evidence. As discussed in assignment of error one, counsel failed to file objections to the findings of the magistrate. We accordingly must find plain error in order to reverse. To demonstrate plain error, appellant must show that but for the error, the result of the proceeding would clearly have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, ¶ 2 of the syllabus. Notice of plain error is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id. at paragraph 3 of the syllabus.
{¶19} In reviewing whether the trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, 60; See also, C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. If the trial court‘s judgment is “supported by some competent, credible evidence going to all the essential elements of the case,” a reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at 74.
{¶20} Moreover, “an appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the weight to be given the evidence are primarily for the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273:
{¶21} “The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.”
{¶22} Moreover, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger (1997), 77 Ohio St.3d 415, 419, 674 N.E.2d 1159; see, also, In re: Christian, Athens App. No. 04CA10, 2004-Ohio-3146; In re: C. W., Montgomery App. No. 20140, 2004-Ohio-2040.
{¶23} In determining the best interest of the child at a permanent custody hearing,
{¶24} The evidence established that appellant had only visited Z.N. five times. She had resided in the same foster home since her birth and her foster family wanted to adopt her. Appellant was incarcerated at the time of the December 2010, hearing and was not due to be released until March, 2011. The caseworker assigned to Z.N.‘s case testified that permanent custody was in Z.N.‘s best interest. She testified that appellant
{¶25} The second assignment of error is overruled.
{¶26} The judgment of the Licking County Common Pleas Court, Juvenile Division, is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
JUDGES
JAE/r0603
IN THE MATTER OF: Z.N.
CASE NO. 11-CA-00115
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
[Cite as In re Z.N., 2011-Ohio-3221.]
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas, Juvenile Division, is affirmed.
Costs assessed to appellant.
JUDGES